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Columliia Snibevsits iattaxtt 



THE NATURE AND SOURCES OF THE LAW 

THE CABPENTIEB LECTUBES 

1908-1909 



COLUMBIA UNIVERSITY LECTUBE8 



THE NATURE AND SOURCES 
OF THE LAW 



BY 



JOHN CHIPMAN GRAY, LL.D. 

EOYALL PBOrSSSOB OF LAW IN HARYABD UmTSBBITT 




THE COLUMBIA UNIVERSITY PRESS 
1909 

Ml HghU reierved 



CorTBiam, IMO, 
Bt THS COLUMBIA UKIYEBSITT FBE88. 

Set up and electrotyped. Publialied October, xgog. 

173035 



Votfoooti 9ttff 

J. 8. Ouhiof Go. — Berwick & Smith Go. 

Norwood, ItoM., U.B.A. 



TO 

HIS OLD PUPILS 

WHOSE AFFECnONATB BEGABD 

HAS BEEN TO HIM 

A LIFE-LONG BLESSING 

FROM 

THEIB OBATEFUL 

MASTER 



PREFACE 

SoHB fifty years ago I came across a copy of Austin's 
" Province of Jurisprudence Determined," then little read 
in England, and all but unknown in this country; and 
since then, although my work has been mainly on other 
lines, the subject has seldom been for long wholly out 
of my mind. I put my ideas into substantially their 
present shape a dozen years ago; I have held them in 
abeyance more than the prescribed nine years; but I 
doubt if they would ever have been published had not 
Columbia University done me the honor of applying the 
lene tormentum of an invitation to give a course of lec- 
tures on the Carpentier Foundation. 

The lectures were read at Columbia University in 
the spring of 1908. They have been here divided into 
thirteen chapters, but no attempt has been made to change 
the familiar style they bore in delivery. The use of 
homely expressions and examples helps one to keep a grasp 
on the facts of daily life, the loss of which is the chief 
danger in the moral sciences. 

There may not be so good a defence for the repetitions 
in these lectures; readers may be provoked by what they 
will consider damnable iteration ; but here, too, it seemed 
desirable to show how, in approaching the Law from 
different points of view, the same truths emerge as 
fundamental. 

My wish to keep the lectures within moderate limits 
has led to the omission of much that might properly have 

vii 



viii PREFACE 

found a place in them. For a fuller and, it may be, a 
broader treatment of several of the subjects treated, I 
commend to the reader the books of two of my learned 
friends, " Studies in History and Jurisprudence," by Mr. 
James Bryce, now British Ambassador at Washington, 
and a " First Book of Jurisprudence," by Sir Frederick 
Pollock, Corpus Christi Professor of Jurisprudence at 
Oxford. 

The student of Jurisprudence is at times troubled by 
the thought that he is dealing not with things, but with 
words, that he is busy with the shape and size of count- 
ers in a game of logomachy, but when he fuUy realizes 
how these words have been passed and are still being 
passed as money not only by fools and on fools, but by 
and on some of the acutest minds, he feels that there 
is work worthy of being done, if only it can be done 
worthily. 

I have endeavored to acknowledge my conscious indebt- 
edness to other writers, but when one has been reading 
and thinking on a subject for half a century, it is difficult, 
indeed impossible, to tell what is one's own and what one 
owes to others. It is best to make no claim to originality; 
I make none. 

It is a pleasure to render my hearty thanks to the 
authorities of the University, and especially to Dean 
Kirchwey and the other members of the Faculty of Law, 
for their cordial welcome and encouragement. 

J. C. G. 

JuLT 14, 1909. 



TABLE OP CONTENTS 
PART I 

NATURE OF THE LAW 
CHAPTER I 

SBOnON 

Legal Rights and Duties 1 

CHAPTER U 
Legal Persons 63 

CHAPTER III 
The State 149 

CHAPTER IV 
The Law 191 

CHAPTER V 
The Courts 248 

CHAPTER VI 
Law of Nations 277 

CHAPTER VII 

Jurisprudence 288 

ix 



1 



xu 



AUTHORS COMMENTED ON OR QUOTED 



Maine, 85, 201, 587, 634, 647, 655. 

Mai^and, 127, 455-457. 

Maurenbrecher, 444. 

Mearer, 67. 

Flacentinus, 402. 

Plato, 104. 

Piatt, 312, 314. 

Plowden, 458. 

Puchta, 638. 

Pulton, 414. 

SavigDy, 203-205, 207, 872, 374, 

441, 502, 638-640, 679. 
Sidgwick, 47. 



Smith, George H., 43, 656. 
Smith, Munroe, 597 a. 
Sohm, 380,405,427n,670. 
Stobbe, 441, 684, 685, 687. 
Story, 284, 590. 
Thibaut, 345, 430, 444. 
Thon, 40. 
Thurlow, 688. 
Uhrig, 07. 
Wachter, 441. 
WindBcheid, 377, 407. 
Yale, 633. 
Zitelmann, 67. 



PART I 
THE NATURE OF THE LAW 

CHAPTER I 

LEGiLL SIGHTS AND D0TIE8 

Seo. 1. There are three ways of approaching the 
Law. The first two may be called respectively the his- 
torical and the systematic, analytic, or dogmatic. To the 
third it is, more difficult to give a name. This third way 
starts from the needs of society, and considers how far the 
Law is adequate or inadequate to those needs. As it 
deals with what the Law ought to be, we may designate 
it as the deontological or ethical. All three ways are 
used by jurists and judges, all three often by the same 
jurist or judge, and rightly, for each illustrates and helps 
the others. It would be pedantic to attempt to separate 
them rigidly. In a comprehensive treatment of any ques- 
tion concerning human conduct, what men have done, 
what men are doing, and what they ought to do have all 
to be considered. 

Sbg. 2. Each of these methods has its advantages and 
its drawbacks. 

Sec. 8. The history of institutions is no mean aid to 
the understanding of their nature. Especially is it useful 
with regard to the anomalies and lack of symmetry in an 
actual system which render its substance hard to classify 

1 



2 NATURE AND SOURCES OF LAW 

• * * • 

and diffictilf *4k) remember. It helps to distinguish those 
parts of'tite'Law which correspond to modern ideas from 
those. VIrich are survivals of an earlier age. For instance: 
T^ihi^ 'arrangement of the Law, according to our modem 
notions, with reference to the nature of rights and duties, 
'tl^e forms of action have been a hindrance, but that hin- 
/••/jdrance is greatly lessened when we understand how tres- 
;•/*'' pass, and trover, and assumpsit had their origin in a time 
when the Law was arranged with reference not to rights, 
but to remedies. Again, the difficulty of remembering 
legal doctrines which have no present rational excuse for 
being is alleviated if we can trace them to the times when 
they had their origin. A present reason is better than a 
past reason, but a past reason is better than no reason at 
all. 

Sec. 4. But the historical method has its disadvantages; 
it begets literary rather than practical study ; it hinders 
the grasping of the Law of the present time as a whole. 
Mr. Frederic Harrison has some noteworthy remarks on 
this point.^ Speaking of the historical study of the 
Roman Law, which was so stimulated by the discovery of 
Gains, he says : " The result to the overburdened memory 
of the student is too often to lead to a spirit of legal ana- 
chronism, thoroughly hostile to the really legal mind. • . . 
It is desirable to know how irregular, how arbitrary, and 
how archaic the Roman system once was, but the essential 
thing is to know how symmetrical, how wise, how scien- 
tifically right it ultimately became." 

Sec. 5. To turn to the systematic or dogmatic method. 
That the orderly arrangement and study of the doctrines 
of the Law now actually existing is desirable, will meet 

1 31 Fortn. Bey. 120-130. 



LEGAL RIGHTS AND DUTIES 3 

no contradiction and needs no proof. But yet, in the 
study of the Law, an exclusive attention to its present 
condition has its dangers. The sympathetic student of 
dogma — and students of dogma are generally sympathetic 
— is apt to mistake blemishes for beauties, or, at any rate, 
to consider them part of the normal structure. 

Sec. 6. Take a topic in some actually prevailing system 
of Law. It may contain a multitude of rules, confused, 
contradictory, which can be worked into a coherent body 
of doctrine only by virtue of limitations and qualifications, 
by strained meanings, and by artificial presumptions ; but 
if yre look back along the history of the Law, we shall 
very likely find one simple doctrine running through it 
all, but distorted here, and perverted there, and misunder- 
stood in a third place, whence have arisen anomalies and 
exceptions, which we learn to recognize as anomalies and 
exceptions, but ivrhose anomalous and exceptional charac- 
ter we do not discover when we are simply face to face 
with the present system. 

Sec. 7. Now for what I have called the deontological 
method of dealing with the Law, the consideration of its 
fitness or unfitness to meet the needs of society. This is 
for legislators and the advisers of legislators. How far is 
it a method to be followed by judges and jurists ? The 
opinions of judges in the Common Law and of jurists in the 
Civil Law on what society needs have profoundly influenced 
the Law, and for the better. And what could be a happier 
state of affairs than that judges and jurists should approach 
the Law from the side of the public welfare and seek to 
adapt it to the promotion of the common good ? 

Sec. 8. And yet we must use caution here. Nothing 
would be more to be desired than that judges and jurists 



4 NATURE AND SOURCES OF LAW 

should mould and guide the Law to make it correspond 
to the needs of society, \f they know what the needs of 
society are. But this is a tremendous if; they probably 
do not know; there is little in their calling and life to have 
given them that knowledge. Judges and jurists are men 
of their time ; they are swayed, like the rest of us, by the 
ZeitgeUtf and it is well that they are; but that they should 
consciously set about developing the Law, say in a social- 
istic or anti-socialistic manner, is not well. 

Seo. 9. A treatise on Law constructed on this third 
method would be a Treatise on Legislation rather than on 
Jurisprudence. All writers on Jurisprudence have, how- 
ever, employed it incidentally. And this is inevitable. 
Even Austin, the strictest of the analytic jurists, admits 
that ^'it is impossible to consider Jurisprudence quite 
apart from Legislation; since the inducements or consider- 
ations of expediency which lead to the establishment of 
laws, must be adverted to in explaining their origin and 
mechanism." ^ 

Seo. 10. In these lectures I propose to follow the 
systematic method and to call your attention to the analy- 
sis and relations of some fundamental legal ideas, rather 
than to tell their history or prophesy their future develop- 
ment. Not that I am insensible to the value of historical 
studies, nor blind to the fact that legal conceptions are 
constantly changing, yet, to borrow a figure from the shop, 
it is well at times to take account of stock, to consider 
and analyze Law in the stage of development which it 
has reached, although we believe it neither possible nor 
desirable that the development should not go on in the 
future. 

1 2 Aust. Jur. (4th ed.) 1113. 



LEGAL RIGHTS AND DUTIES 5 

Seo. 11. If I may be allowed to reproduce some words 
of mine, dug from the pages of an old periodical: 
*^ Besides, as one should remember, though most legal 
conceptions alter, and there may be few which are so based 
on eternal principles that they cannot change while the 
order of nature continues, yet their change is often ex- 
ceedingly slow, and many of them go back as far as we 
have a clear knowledge of human affairs, and show to our 
eyes no signs of decay. 

Sbg. 12. *' The analytic study of the general conceptions 
of the Law is not, as experience has shown, without its 
dangers. It may easily result in a barren scholasticism. 
^Jurisprudence,' as Mr. Dicey says, ^ *is a word which 
stinks in the nostrils of a practising barrister. A jurist 
is, they constantly find, a professor whose claim to dogma- 
tise on law in general lies in the fact that he has made 
himself master of no one legal system in particular, whilst 
his boasted science consists in the enunciation of platitudes 
which, if they ought, as he insists, to be law everywhere, 
cannot in fact be shown to be law anywhere.' Tet, as Mr. 
Dicey in the same article goes on to show, ^Prejudice ex- 
cited by a name which has been monopolised by pedants 
or impostors ' should not blind us to .the advantage of 
having clear and not misty ideas on legal subjects. 

Sbg. 13. ^* Especially valuable is the negative side of 
analytic study. On the constructive side it may be un- 
fruitful, but there is no better method for the puncture of 
windbags. Most of us hold in our minds a lot of proposi- 
tions and distinctions, which are in fact identical, or 
absurd or idle, and which we believe, or pretend to our- 
selves to believe, and which we impart to others, as true 

1 6 Law Mag. and Bey. (4th serieB) 382. 



6 NATURE AND SOURCES OF LAW 

and valuable. If our minds and speech can be cleared of 
these, it is no small gain. 

Sec. 14. *' This is the great merit of Austin. His 
style is inexpressibly wearisome. He himself once ex- 
pressed a doubt whether his love-letters were not written 
in the fashion of an equity draughtsman ; and certainly 
his treatise resembles in manner more the charging part of 
an old bill in equity than any other kind of human com- 
position. The insolence of his language also. — though 
very likely not of his thought — is often offensive, and the 
theories which he advanced have not remained unshaken. 
But his unwillingness to let others juggle with words, or 
to juggle with them himself, or knowingly to leave any 
dark corner of a subject unexplored, has seldom been 
equalled, and to many students has made the reading of 
his crabbed book a lesson never to be forgotten in intel- 
lectual honesty." 

Sec. 15. The task of an analytic student of the Law is 
the task of classification, and, included in this, of defini- 
tion. It has been truly said that he who could perfectly 
classify the Law would have a perfect knowledge of the 
Law, but the besetting sin of the analytic jurist is the 
conviction that his classification aud definitions are final. 
He is often sensitive, over sensitive, to this fault in other 
writers, but he feels that he himself has said the last 
word. I cannot hope to escape this failing of all our 
tribe. But I want to warn you of its existence, that you 
may exercise a judicious scepticism. I shall be more than 
satisfied if I can interest you enough in the subject to 
make you think it worth while to question my conclu- 
sions. 

Sec. 16. The Common Law has often been reproached 



LEGAL RIGHTS AND DUTIES 7 

with the lack of precision and certainty in its definitions, 
but, in truth, it is a great advantage of the Common Law, 
and of the mode of its development by judicial decision, 
that its definitions are never the matters resolved by the 
cases ; they are never anything but dicta. If at the end 
of the sixteenth, or of the seventeenth, or even of the 
eighteenth century, there had been definitions binding by 
statute on the Courts; if the meaning of '* contract," and 
*^ malice," and '' possession," and '^ perpetuities " had been 
fixed, what fetters would have been imposed on the natu- 
ral development of the Law. And it is the great disad- 
vantage of a code, that practising lawyers and jurists alike 
are hampered by the cast-iron classification and definitions 
of a former generation, which, in the advancement of leg^ 
thought and knowledge, are now felt to be imperfect and 
inadequate. 

Sec. 17. But although our attempts at classification are 
necessarily provisional and temporary, although the one 
certain prophecy that the legal writer can make is that the 
classification which approves itself to him at the beginning 
of the twentieth century will surely not be the one which 
will prevail at its end, yet our imperfect efforts may not 
be useless, our classification and our definitions, inadequate 
as they will doubtless prove to be, may yet be stepping- 
stones to higher things. It may be well to climb up the 
hill of knowledge, although we feel sure we shall never 
reach the top. 

Sec. 18. The danger in dealing with abstract concep- 
tions, whether in the Law or in any other department of 
human knowledge, is that of losing foothold on the actual 
earth. The best guard against this is the concrete in- 
stance, the example. Much fine-spun speculation has been 



10 NATURE AND SOURCES OF LAW 

In order for a duty to create a right, it must be a duty to 
act or forbear. Thus, among those duties which have 
rights corresponding to them do not come the duties, if 
such there be, which call for an inward state of mind, as 
distinguished from external acts or forbearances. It is 
only to acts and forbearances that others have a right. It 
may be our duty to love our neighbor, but he has no right 
to our love. Aime-moiy ou je te tue^ is an extravagance. 
* The utmost to which our neighbor has a right is that we 

should treat him as if we loved him. 

Sec. 26. Again, a duty to which a right corresponds 
must be a duty to act or forbear towards other persons. 
Among the duties with correlative rights are not included 
self-regardant duties, those which have no reference what- 
ever to other persons. In our complex state of society, 
there may be few duties which are absolutely and solely 
self -regardant ; but such duties may be conceived. If a 
ship, laden with Medford rum, be wrecked on a desert 
island, although the owner be the sole survivor, and al- 
though he have no hope or chance of rescue, it may yet be 
his duty not to pass his time in drinking up the cargo. 
But no one has here any right. 

Sec. 27. Once more, in order to give a man a right, 
there must be a duty to act or forbear in his interest. 
There may be a duty to do an act to a person where we 
Y J. * cannot say that he has a right to have the act done. 
V N' ^ . Thus, it may be the duty of Jack Ketch to hang Jonathan 
Wild, but we do not say that Wild has a right to be 
hanged. 

Sec. 28. Excluding what ought to be excluded, we 
have, then, this as a definition of moral right : When one 
is under a duty to act or forbear in the interest of a 



•• 

>^' 



LEGAL RIGHTS AND DUTIES 11 

person, such a person has a right to that act or for- 
bearance. 

Sec. 29. Another meaning given to *^ a right '' is to be 
found adopted and explained in Mr. Holland's ^^ Elements 
of Jurisprudence," ^ as well as anywhere. " What, then," 
he says, "is 'a legal right'? But first, what is a right 
generally? It is one man's capacity of influencing the 
acts of another, by means, not of his own strength, but of 
the opinion or the force of society. When a man is said 
to have a right to do anything, or over anything, or to be 
treated in a particular manner, what is meant is that pub- 
lic opinion would see him do the act, or m^ke use of the 
thing, or be treated in that particular way, with approba- 
tion, or at least with acquiescence ; but would reprobate 
the conduct of anyone who should prevent him from doing 
the act, or making use of the thing, or should fail to treat 
him in that particular way." 

Sec. 80. But is this approval by public opinion a nec- 
essary element in the idea of a right? In some of the 
United States, — as, for example, in Texas, — statutes ex- 
empt property of debtors to a very large amount from 
being taken for their debts, and these statutes, judging 
from the language of the Courts, meet with the hearty 
approval of the public opinion of the neighborhood, as 
designed, they say, " to cherish and support in the bosoms 
of individuals, those feelings of sublime independence 
which are so essential to the maintenance of free insti- 
tutions."^ Does this give the Texan farmer a right not to 
pay his debts? Does the fact that he lives in a commu- 
nity where such things are practised and praised affect 

1 Jurisprudence (10th ed.) 78. 

* Franklin t. Coffee, 18 Tex. 413, 416. 



12 NATURE AND SOURCES OF LAW 

the question? If a man has to pass upon the rights of 
himself or of any one else, it is more than probable that 
his judgment will be affected by the tone of the commu- 
nity in which he lives, but, if he is honest, he does not 
consciously admit the voice of public opinion as the test 
of the existence of rights. Public opinion is no more an 
essential element of rights than it is of morality itself. 

Sec. 81. It may be said that all this is a question of 
nomenclature, and that Mr. Holland may give to a word 
any meaning he pleases, provided his usage is consistent 
with itself. But it is submitted that, while the need of 
scientific precision sometimes requires a writer to select 
and adhere to one of the meanings of a word or phrase 
between which popular speech varies, he should depart 
from ordinary usage as little as possible. The failure to 
observe this rule has two evil results. In the first place, 
the writer is more likely to be misunderstood by his read- 
ers, and secondly, his own attention will sometimes flag, 
he will unconsciously substitute the common for his own 
arbitrary meaning, and the undistributed middle will 
bring his argument to grief. 

Sbc. 82. It is undoubtedly desirable to have a term 
to express what a man has by virtue of public opinion 
concerning the duty of others to act or forbear in his 
interest, but it had best not be " rights '* simply; " positive 
moral rights," though not entirely unobjectionable, seems 
as unobjectionable as any that has been proposed. 

Sec. 38. While on this matter of nomenclature, it may 
be remarked that although "right '* and " duty " are used 
as correlative terms, and in common parlance, as well as 
in scientific terminology, there can be no right where 
there is no duty, yet " right " seems to have had its origin 



LEGAL RIGHTS AND DUTIES 13 

in the Law, and ^^ duty " in ethics ; that, in spite of each 
term being now domesticated in the domain of the other, 
so that thej have paired in both places, the expression 
*' moral right '* does not come as trippingly from the tongue 
as ^^ legal right," and, on the other hand, *^ legal duty" 
strikes the ear with a less familiar sound than ^^ moral 
duty;" and that the ideas first evoked by the words ^^ right" 
and "duty" are of "legal right" and of "moral duty," 
respectively. 

Ssc. 84. So much as to rights and duties generally: 
now for legal rights and duties. Human society is organ- 
ized for the protection and advancement of human inter- 
ests. The object of its organization is to insure the doing 
of certain things which individuals could not do, and to 
protect individuals in the accomplishment of their wishes 
to an extent to which they could not protect themselves. 
Sometimes the real purpose of organization is to secure 
the interests of a very limited number of persons. But 
yet, such are the blessings of order, that any political 
organization, however small the number of persons in- 
tended to be benefited by it, is better for the rest than 
anarchy. 

Sbc. 35. To accomplish its purposes, the chief means 
employed by an organized society is to compel individuals 
to do or to forbear from doing particular things. Some- 
times the society puts this compulsion in force of its own 
motion; and sometimes it puts it in force only on the 
motion of the individuals who are interested in having it 
exercised. 

Sec. 36. The rights correlative to those duties which 
the society will enforce of its own motion are the legal 
rights of that society. The rights correlative to those 



14 NATURE AND SOURCES OF LAW 

duties which the society will enforce on the motion of an 
indiyidaal are that individual's legal rights. The acts 
and forbearances which an organized society commands in 
order to protect legal rights are the legid duties of the 
persons to whom those commands are directed. 

Sbc. 87. The poverty of our nomenclature, on which I 
have already remarked, has worked a confusion in these 
fundamental ideas. The word " duty " has been used so 
preeminently in the sphere of morality that there is at- 
tached to it, and, in a less degree, to the correlative word 
" right," the flavor of " ought," of right as opposed to 
wrong, which is difficult to remove even by prefixing the 
word *' legal "; and many persons feel a natural repulsion 
from the statement that, ^' It is a legal duty to obey a 
statute commanding an immoral act." 

Sbc. 38. And yet if legal duties are the acts and for- 
bearances which an organized society will compel, it is 
obvious that many very immoral acts and forbearances 
have been legal duties. 

Ssc. 89. But some writers, while admitting this, are 
led by the ethical atmosphere which attends ^* right " and 
^' duty " to connect law with ethics, not in a legitimate 
but in an illegitimate way. They recognize ^^ that a posi- 
tive right is that which is regarded and treated as a right 
in some system established for the maintenance of rights," 
and that this positive right may differ from what they 
call right in fact, or natural right, but they insist that the 
function of organized society is not to create rights, but to 
declare them, and that any distinction between legal 
duties and rights, on the one hand, and duties and rights 
in fact is due to the imperfection with which society per- 
forms its functions ; in other words, that the essence of 



LEGAL RIGHTS AND DUTIES 15 

legal duties is that they are moral duties as declared by 
society, and not simply acts and forbearances which 
society will enforce ; that is, although they do not deny 
that this last is a correct description, they say that it does 
not bring out the true nature of legal duties. 

Sbc. 40. Now, it may be granted that an organized 
society, in acting through its legislative or judicial organs, 
is generally purporting to act in accordance with morality, 
but, on the other hand, many statutes are passed without 
any question of morality occurring to the legislators, and 
the real motives of many legislative acts have been un- 
doubtedly selfish and immoral. 

Sec. 41. Let us take a case which will serve as a test. 
Suppose some autocrat of absolute power, cynical, utterly 
selfish or capricious, — a Caligula or a Heliogabalus, — 
should enact as a whim, that a favored individual should 
have certain powers of extortion over other citizens. If 
remonstrated with on the immorality of his edict — *^Tes," 
he would say, ^^ as immoral as you please, but what do I 
care for morality. It is my will; can't I play the fool if 
I wish ? What are you going to do about it ? " Suppose 
the judges and officers carried out the edict, and the people 
obeyed. The favorite would have had his legal rights ; 
his victims would have been under a legal duty to obey. 
The edict did not declare moral rights, it did not purport 
to declare moral rights, it was issued in defiance of 
morality; yet, because it was a rule which was enforced 
by the organized society, it created legal duties and legal 
rights. 

Sec. 42. It may be well to be reminded, by the resem- 
blance between names g^ven to legal and moral relations, 
that organized societies establish many legal duties with a 



16 NATURE AND SOURCES OF LAW 

moral purpose, and that they ought not to establish legal 
duties which are inconsistent with good morals ; but it is 
not well to affirm, simply on similarity in name, that the 
essence of legal duties is a thing which they sometimes 
possess and sometimes do not. 

Sbo. 48. The illicit process indicated shows that it is 
unfortunate that we have no words for those ideas com- 
monly expressed by ^4egal duties" and "legal rights" 
which might be without the ethical coloring, which it 
requires an effort of attention to dissociate from " duties " 
and "rights" however qualified, but it is a question hardly 
of the importance given to it by Mr. George H. Smith in his 
treatise on " The Elements of Right and of the Law," the 
second edition of which was published at Chicago in 1887, 
and the purpose of which is a strenuous polemic against 
the use of the expression "legal right." The author 
insists that there is but one kind of right, that "moral 
right is a tautology, that a right connotes the idea of moral 
rightness," and that for " legal right " should be substituted 
"action" or "legal power." In all the other European 
languages, as well as the English, the term used to express 
what Mr. Smith calls "action" or "legal power" is 
bright," or its equivalent, viz. recht^ droits diriUo^ dereeho^ 
etc., and the general usage is too firmly fixed to be changed 
except by general consent. 

Seo. 44. But though it is unadvisable to banish the 
term "legal right " from the vocabulary of Jurisprudence, 
it is not, perhaps, entirely the same with "legal duty." 
Though the noun substantive " a right " is now become a 
word familiar in the domain of ethics, it seems, as above 
remarked, to have been originally a term of the Law, but, 
on the other hand, the word " duty " had its beginning in 



LEGAL RIGHTS AND DUTIES 17 

the sphere of morality and has never been able to shake 
off the effect of its surroundings, and while **• legal right " 
is a phrase more familiar than ^* moral right," ^4egal 
duty" is a forced expression. 

Seo. 45. On the whole, perhaps the best term to 
express the correlative of ^4egal right" would be not 
" legal duty," but " legal obligation." " Obligation " has 
a far weaker ethical flavor than ^* duty," carrying with it 
the idea of external and not of internal compulsion. And 
yet it should be remembered that ^^ ohligaJtio " in the Civil 
Law is the regular technical term for the correlative, not 
of jura generally, but of a particular class, jura in per- 
9onam^ that, although such a usage cannot be said to have 
yet established itself in the nomenclature of the Com- 
mon Law, it is desirable to have a word equivalent to 
the Roman obligation and that ^^ obligation " is the most 
natural to select. In any attempt, therefore, to popularize 
the conceptions of Jurisprudence to lay readers, it may be 
best to speak of ^^ legal obligations," there being with them 
little danger of confusing ^^ obligation " with the obligatio 
of the Roman Law, but in books for more instructed read- 
ers there may be less ambiguity in using the expression 
^4egal duty," though, as has been shown, such use has its 
dangers. 

Sec. 46. Although usage, /te^ et norma hquendi allows, 
indeed requires, us to employ "legal rights," if not "legal 
duties," without any connotation of moral rightness, the 
same final judge condemns the use of " just " without that 
connotation. Hobbes, indeed, affirms that " no law can 
be unjust," and Austin, defending him,^ says : " By the epi- 
thet ^tM^ we mean that a given object, to which we apply 

1 1 Jar. (4th ed.) 276, note. 



18 NATURE AND SOURCES OF LAW 

the epithet, accords with a given law to which we refer it 
as to a test. And as that which is ju9t conforms to a 
determinate law, Justice is the conformity of a given object 
to the same or a similar measure." If by *^ we " are meant 
Austin and Hobbes, the statement may be correct, but 
such is not the common usage. In that usage, justice is in- 
dissolubly connected with morality. A debtor in whose 
favor the statute of limitations has run is under no *' legal 
duty " to pay, his creditor has no " legal right " against 
him, but if the debtor refuses to pay, his conduct would 
not be called ^^ just." 

Seo. 47. Professor Sidgwick puts the matter well: 
^^And hence has arisen a crude definition of Justice, 
which identifies just conduct with conduct in conformity 
with Law. But reflection shows that we do not mean by 
Justice merely the habit of Law-observance. For, first,, 
we do not always call the violators of law unjust, but only 
of some laws; not, for example, duellists or gamblers. 
And secondly, we continually perceive that Law does not 
completely realize Justice : our notion of Justice furnishes 
a standard with which we compare actual laws and pro- 
nounce them just or unjust. And, thirdly, there is a 
part of just conduct which lies outside the sphere of Law: 
for example, we think that a father may be just or unjust 
to his children in matters where the Law leaves (and 
ought to leave) him free." ^ 

Sec. 48. Protected Interests and Eights. If it is my in- 
terest to receive a hundred dollars from Balbus, or if it is 
my interest to go out of a room, and if organized society 

I Sidgwick, Methods of Ethics, Book 8, c. 6, § 1. Bat see J. S. MiU, 
Eaeay on Natare, p. 52. 



LEGAL RIGHTS AND DUTIES 19 

imposes a duty upon Balbus to pay me, or imposes a duty 
upon everybody not to interfere with my leaving the room, 
I have a legally protected interest and I have a legal right. 
What is the legfal right which I have ? The full definition 
of a man's legal right is this : That power which he has to 
make a person or persons do or refrain from doing a certain 
act or certain acts, so far as the power arises from society 
imposing a legal duty upon such person or persons. 
Therefore, my legal right in the cases supposed is the 
power to compel Balbus to pay me, or the power to pre- 
vent persons from interfering with my leaving the room. 

Sec. 49. Ihering, in his ** Spirit of the Roman Law," 
defined rights as legally protected interests. This defini- 
tion was received in Germany with a sort of enthusiasm, 
and, indeed, it was a great advance on the nonsense that 
had been talked upon the subject, but it has been strenu- 
ously attacked by many German jurists of whom Thon 
is the protagonist, and there is an extensive literature on 
the subject.^ Ihering^s adversaries seem on this point to 
have the better of the argument. The right is not the 
interest itself ; it is the means by which enjoyment of the 
interest is secured. It is the power to get the money 
from Balbus, or the power to leave the room, which is 
the legal right, not the payment of the money or the leav- 
ing the room. Common usage, however, permits us to 
describe this right as the right to be paid, or the right 
to leave the room, and this usage does not seem likely to 
lead to any evil results. 

Sec. 50. By the interests of a man is meant the things 
which he may desire. I shall not attempt to enumerate 

^ A convenient reference to this literature will be found in 1 Wind- 
scheid, Pandekten, § 37. 



20 NATURE AND SOURCES OF LAW 

or classifj the objects of human desire. The object may 
be the ownership or possession of a corporeal thing, as a 
book ; it may be an act, as eating a dinner ; it may be a 
relation, as marriage ; and the desire may be a foolish or 
hurtful one. The eating of shrimp salad is an interest of 
mine, and, if I can pay for it, th^ law will protect that 
interest, and it is, therefore, a right of mine to eat shrimp 
salad which I have paid for, although I know that slirimp 
salad always gives me the colic. 

Sbc. 51. The legal rights of a man are the rights which 
are exercisable on his motion.^ A man has, therefore, no 
legal right as to those interests in the realizing of which 
he is protected only by other people exercising their 
rights. The fact that the State can punish the burglar 
who breaks into my house does not give me any right not 
to have my house broken into. Not that I am without a 
right not to have my house broken into. The law can 
protect my interest not to have a thing done in several 
ways : as in the first place, by allowing me to withstand 
the act by force ; or secondly, by allowing me to limit the 
freedom of the person who wishes to do the act by placing 
obstacles in his way; or thirdly, by appealing to the 
courts to punish such person. The law may deny to a 
man this third mode of protecting his interest, but if it 
allows him the first and second, or either of them, he has 
a legal right. A system of law may, as the Common Law 
does, merge the tort in the felony, and refuse the house- 
holder an action against the burglar, but so long as he can 
withstand the burglar, even to killing, and can draw bolts 
and bars to keep him out, he has the right not to have his 

^ See Sec 96, ante. 



LEGAL BIGHTS AND DUTIES 21 

house entered. If, when I heard a burglar lifting the 
latch of my door, the State allowed me to use neither 
threats nor force to compel him to desist, and if the State 
also forbade me to turn any lock or push any bolt, or in 
any other way interfere to keep him on the outside, and 
if the only thing to prevent his coming in was the fact 
that the State could, if it would, hang him or send him 
to prison, then I should have no right not to have my 
house entered, whatever right the State might have. 

Sec. 52. So the interests of brute animals may have 
legal protection. Very often, indeed, acts commanded or 
forbidden towards animals are not commanded or forbidden 
for the sake of the animals, but for the sake of men ; but 
certain acts of cruelty, for instance, towards beasts, may 
be forbidden, at least conceivably, for the sake of the 
creatures themselves. Tet beasts have no legal rights, 
because it is not on their motion that this protection is 
called forth. 

Sec. 58. The protection which society gives to a man's 
interests is either direct or indirect. Sometimes it protects 
them directly, as when its courts compel a man who is 
threatening to flood the land of a riparian proprietor up- 
stream to take down his dam ; sometimes indirectly, as by 
giving a man a right to have a wrong-doer compelled to 
make compensation. And the right to ask the courts for 
aid is not always a right to sue in them, but is often a right 
to be protected against suits brought by others. For in- 
stance, under a statute of limitations, if a debt remains 
unpaid for six years, the creditor cannot compel the debtor 
^y to pay it; that is, the debtor has a right to interpose the 

defence of the statute and thereby call upon the court to 
refuse its assistance to enforce the creditor's demand. So 



22 NATURE AND SOURCES OF LAW 

again, a householder has the right to eject by force a 
trespasser from his ^^ castle." That is, if sued by the 
trespasser for assault, he can call upon the court to refuse 
the plaintiff its help. In other words, a man's legal rights 
include not only the power effectually to call for aid from 
an organized society against others, but also the power to 
call effectually upon the society to abstain from aiding 
others. 

Sec. 54. Let us dwell for a moment more on the nature 
of the protection which society affords to a man's interests. 
In the first place, it may allow him to protect himself ; 
this is self-help. Seeandltfy it may allow him to appeal to 
the courts to protect him, as by an injunction. Thirdly^ 
it may allow him to appeal to the courts for compensation 
for injuries. In all three of these cases, the actual volition 
of the man himself is necessary. He must put up his own 
fists ; he must bring his suit for an injunction or for dam- 
ages in the courts. The State will not double up his fists 
for him, nor will it bring a suit for him in the courts. 
The right to these modes of protection is, therefore, his 
right. 

Skg. 55. But there is a fourth method in which the 
State protects a man's interests, and that is the prevention 
of injury to them, not by the intervention of the courts, 
but by the intervention, of administrative officers. My 
interest not to have my windows broken is protected not 
only by my power of appealing to the courts to prevent or 
compensate for the breaking, but also by the presence of 
the policeman on his beat. In this case you may say there 
is no actual volition on my part. I do not know that the 
integrity of my windows is threatened. Tet the stopping 
of the window breaking is really dependent upon my will, 



LEGAL RIGHTS AND DUTIES 23 

for if I tell the police to let the boys go ahead and break 
my windows, it will cease to interfere. What really hap- 
pens in this case is that the State assumes a wish on my 
part (an assumption amply fortified by the ordinary attri- 
butes of human nature) that my windows should not be 
broken. Indeed, after all, in this fourth class of citees is there 
not an actual volition ? Every man undoubtedly actually 
wishes that his property should be protected, and also that 
the State, through its administrative officers, should protect 
it, so that, even in this case, there may be said to be an 
actual volition and that, therefore, the man has a right. 
It should be noted that the State may, and probably often 
does, allow a man to commit to the State a larger power to 
protect his interests than it would allow him to exercise in 
his own person. 

Sec. 56. There is a fifth method by which the State 
protects a man's interests, and that is, by declaring that it 
will punish criminally acts against certain interests of in- 
dividuals, and by punishing accordingly. The dread of 
punishment undoubtedly protects the interests of the in- 
dividuals, but in this protection the volition of the indi- 
viduals protected has no place, and it cannot be said that 
they have any right to this form of protection. ^ 

Sec. 57. To give effect to a man's right, an exercise 
of free will on his part is necessary. No legal compul- 
sion is laid on any one to enforce his right as such. It is 
true that one is sometimes under a legal duty to exercise 

1 See Sec. 51, attU, In some conntries, though this % I think, not 
common in the United States, the bringing of certain criminal prosecutions 
is dependent upon the will of the man injured. In such a case the injured 
person has a right to haye the wrong-doer criminally punished. The form 
of the enforcement of the right is mere matter of machinery. Such was 
the old appeal of death in England. 



24 NATURE AND SOURCES OF LAW 

a right, but this is a duty towards B to enforce a right 
against A, as, for instance, in many cases arising under 
contracts of indemnity. But the exercise of a legal right 
against a person is never a legal duty owed to that person. 
It is of the nature of a man's right as such, that to seek 
or to abstain from seeking the aid of society for the pro- 
tection of his interest is a matter of his own free will. 

Sec. 58. And this leads me to speak of a notion of 
some writers that the object of organized society in creat- 
ing rights should be the protection of the freedom of the 
will. Whether this notion, as is sometimes supposed, 
originated with Hegel, is a question I do not feel com- 
petent to decide. I have no claim to be the one man 
whom Hegel said understood his philosophy. But, with 
whomever the notion originated, I conceive it to be erro- 
neous. It might as well be said that the object of creat- 
ing rights is to restrain the freedom of the will. I wish 
to have a beautiful watch, but society restrains the ex- 
ercise of my will, because the watch belongs to you. I 
do not want to pay you a hundred dollars, but society 
compels me to do it, because I have contracted to pay it. 
I wish to put you out of the way quietly, but society will 
not allow me to poison you. In truth, neither proposition 
is correct. Rights should be created neither solely to 
protect the freedom of the will nor solely to restrain it, 
but to establish and maintain those relations among men 
which are most for the advantage of society or of its 
members. This is best obtained sometimes by permitting 
the will to be exercised, sometimes by restraining it. If 
one chooses to say that the ideal at which an organized 
society should aim in creating rights is human perfection, 
I do not know that there is any objection to it. 



LEGAL RIGHTS AND DUTIES 25 

Sec. 59. An exercise of the will is necessary to give 
effect to legal rights. What connection with will have 
legal duties ? The legal duties of a person are those acts 
and forbearances which an organized society commands 
him in order to protect legal rights. What is a ^^ com- 
mand,'' as the word is used by writers on Jurisprudence ? 
Its meaning is well explained by Austin.^ ^^ If you express 
or intimate a wish that I shall do or forbear from some 
act, and if you will visit me with an evil in case I comply 
not with your wish, the expression or intimation of your 
wish is a command. A command is distinguished from 
other significations of desire, not by the style in which 
the desire is signified, but by the power and the purpose 
of the party commanding to inflict an evil or pain in case 
the desire be disregarded." This conditional evil is called 
by Austin the sanction of the command. 

Seo. 60. In order to create a legal duty, it is not 
necessary that the person subject to the duty should have 
the will to do it. He may have the will not to do it ; it 
still remains his legal duty. But must he have the poten- 
tiality of obeying it? The potential exercise of will is 
not necessary for the creation of a legal duty. I obtain a 
judgment against Thomas Dusenbury for a thousand dol- 
lars. Dusenbury may not have five dollars in the world ; 
still he is under a legal duty to pay the thousand dollars. 
Further, must he know of the command ? This is not 
necessary. If there is a statute in a State forbidding the 
sale of cigarettes, a man who sells a cigarette has violated 
a legal duty, although he does not know of the statute, and 
even although he has just arrived from Lithuania, and can- 
not understand the language in which the statute is written. 

^ Jar. (4th ed.) 01. 



26 NATURE AND SOURCES OF LAW 

Seo. 61. A man, therefore, may be bound by a legal 
duty to do an act, although he cannot possibly do it, and 
although he does not know that he has been ordered to do 
it. The exercise of his will, actual or potential, is not 
necessarily involved in the creation of a legal duty to 
which he is subject. This emphasizes the point to which 
I have already referred, the infelicity of the term ^^ legal 
duty " to signify the burden imposed correlative to legal 
rights. 

Sec. 62. That a right should be given effect there 
must be an exercise of will by the owner of the right. 
But an idiot has no will ; a fictitious body, like a corpora- 
tion, has no will. Has an idiot, then, no legal rights? 
Has a corporation no legal rights? The way the Law 
meets these questions I will try to show in the next chap- 
ter, in which I propose to deal with legal persons, as they 
have been recognized in different systems of Law. 



CHAPTER II 

LBGAL PEB80NB 

Sec. 68. In books of the Law, as in other books, and 
in common speech, ** person " is often used as meaning a 
human being, but the technical legal meaning of a **person" 
is a subject of legal rights and duties. 

Sbc. 64. One who has rights but no duties, or who has 
duties but no rights, is, I suppose, a person. An instance 
which would commonly be given of the former is the King 
of England; of the latter, a slave. Whether in truth the 
King of England has no legal duties, or a slave no legal 
rights, may not be entirely clear. I will not stop to dis- 
cuss the question. But if there is any one who has rights 
though no duties, or duties though no rights, he is, I take 
it, a person in the eye of the Law. 

Sec. 65. As I showed at the end of the first chapter, a 
legal duty does not imply any exercise of will on the part 
of the one subject to the duty, and, therefore, for the exist- 
ence of a legal duty, the person bound need not have a 
will ; but in order that a legal right be exercised, a will is 
necessary, and, therefore, so far as the exercise of legal 
rights is concerned, a person must have a will. 

Seo. 66. In various systems of Law different kinds of 
persons are recognized. They may be classified thus : 
(I) Normal human beings ; (II) abnormal human beings, 
such as idiots ; (HI) supernatural beings ; (IV) ani- 

27 



28 NATURE AND SOURCES OF LAW 

mals ; (V) inanimate objects, such as ships ; (VI) juristic 
persons, such as corporations. Some of these persons, 
such as idiots, ships, and corporations, have no real will. 
How are we to deal with them ? That is the most diffi- 
cult question in the whole domain of Jurisprudence. Let 
us take these classes in order. 

Sbo. 67. (I) Normal Human Beings. Here we are not 
troubled with any question as to the actual presence of a 
will. The normal man or woman has a will. Indeed, 
some German writers make will of the essence of per- 
sonality. Thus, Hegel defines ** personality '' as the 
*^ subjective possibility of a legal will.*' So Zitelmann : 
^^Personality is the legal capacity of will, the bodilineqs 
(JLeibliehkeii) of men, is for their personality, a wholly ir- 
relevant attribute." And again, Meurer: ^^The juristic 
conception of the juristic person exhausts itself in the will, 
and the so-called physical persons are, for the law, only 
juristic persons with a physical 9uperfluumJ*^ 

Sec. 68. On the other hand, Karlowa,^ to whom I am 
indebted for the foregoing quotations, says : ^^ The body 
is not merely the house in which the human personality 
dwells ; it is, together with the soul, which now for this 
life is inseparably bound with it, the personality. So, not 
only as a being which has the possibility of willing, but 
as a being which can have manifold bodily and spiritual 
needs and interests, as a human centre of interest, is a 
man a person." 

Sbc. 69. It is this last definition which American and 
English jurists impliedly, if not expressly, adopt as the 
true definition of a person. It is that which I shall accept. 
Jurisprudence, in my judgment, need not vex itself about 

1 16 GrOnhat, Zeitschr. 881, 383. 



LEGAL PERSONS 29 

the ^^ abysmal depths of personality." It can assume that 
a man is a real indivisible entity with body and soul ; it 
need not busy itself with asking whether a man be any- 
thing more than a phenomenon, or at best, merely a suc- 
cession of states of consciousness. It can take him as a 
reality and work with him, as geometry works with points, 
lines, and planes. 

Sec. 70. It should be observed, before leaving this 
class of normal human beings, that they can exercise their 
rights through agents, such as servants, bailiffs, or attor- 
neys, and they can delegate to their agents the decision of 
the question whether the rights of the principals shall be 
exercised or not. But there is no difficulty here; the 
original spring is a real exercise of will by the owner of 
the right. 

Sec. 71. (II) AbnormcU Human Beings. Some human 
beings have no will ; such are new-born babies and idiots. 
Perhaps it is not correct to say that they are absolutely 
without wills, but their potentiality of will is so limited 
that it may be neglected. Tet, though without wills, 
new-bom babies and idiots have rights. 

Sec. 72. But, further, there are certain human beings 
who are not destitute of natural wills, but to whom the 
Law, for one reason or another, denies what may be called 
a legal will; that is, the Law says their natural wills are 
not operative for the exercise of certain classes of rights, 
— not, generally, for the exercise of all their rights but of 
certain classes of rights. Such denials vary in different 
systems of law. Let us take a simple instance from the 
Common Law. Suppose Doe, a young man of nineteen, 
owns a house, and Roe, coming along, breaks the windows. 
Doe has a right to compensation ; and yet, if he wills to 



30 NATURE AND SOURCES OF LAW 

bring a suit against Roe, either himself or by his agent or 
attorney, the Law does not regard that will, and the court 
will refuse in that suit to compel Roe to make compensa- 
tion, because the right has not been put in motion by a 
will which the Law regards as operative. 

Sec. 73. What is to be done ? A next friend, or a 
guardian, exercises his will and brings a suit in the name 
and behalf of the infant. The will of the guardian is 
attributed to the infant. It is not the guardian, but the 
infant, who is the subject of the right — the legal person. 
We usually say this attribution is a fiction. 

Sec* 74. And here I must make a digression, I fear a 
rather long digression, on the nature and use of fictions in 
the Law. There is a strong feeling against the use at the 
present day of fictions in the Law. This feeling is justifi- 
able or not, according as the fictions belong to the one or 
the other of two classes, the dbtinction between which 
was clearly brought out, for the first time, so far as I am 
aware, by Ihering ; ^ one of the many services which he 
has rendered to the science of Jurisprudence. 

Sec. 75. The first class of fictions is called by Ihering 
** historic fictions." These historic fictions are devices for 
adding new law to old without changing the form of the 
old law. Such fictions have had their field of operation 
largely in the domain of procedure, and have consisted in 
pretending that a person or thing was other than that 
which he or it was in truth (or that an event had occurred 
which had not in fact occurred) for the purpose of thereby 
giving an action at law to or against a person who did not 
really come within the class to or against which the old 
action was confined. 

1 3 GeiBt d. rOm. B. (4Ui ed.) § 5S, pp. dOl-308. 



LEGAL PERSONS 31 

Sbc. 76. The prsetors employed such fictions in aiding 
them to build up the towering fabric of the Roman Law 
on the narrow basis of the Twelve Tables. Thus, persons 
to whom the prsBtor thought it just that a man's property 
should go on his death, — relations, for instance, on the 
mother's side, who were not heirs, — were, by a fiction, 
considered heirs and were allowed to use actions such as 
heirs could use. Serede$ quidem nan 9unt^ sed heredis loco 
constituuntur beneficio prcBtarii. Ideoque 8eu ipn agant^ »eu 
cum his agatur^ ficticiis actionihn opu% est in quibus heredes 
esse fingunturA 

Sec. 77. So when it was thought just that an action 
which was given by the Civil Law only to or against a 
Roman citizen should be extended to or against a foreigner; 
^^ Oivitas Romana peregrino jingitur^ si eo nomine agat aiU 
cum eo agatur^ quo nomine nostris legihus actio constituta est^ 
si modo justum sit, earn custionem etiam ad peregrinum ex- 
t4mdi:'^ 

Sbc. 78. Fictions have played an important part in the 
administration of the Law in England, and it is character- 
istic of the two peoples that the use of fictions in England 
was bolder and, if one may say so, more brutal in England 
than it was in Rome. 

Sec. 79. Thus, for instance, in Rome the fiction that a 
foreigner was to be considered as a citizen was applied in 
this way. It was not directly alleged that the foreigner 
was a citizen, but the mandate by the prsBtor to the judex 
who tried the case was put in the following form: **If, 
in case Aulus had been a Roman citizen, such a judgment 
ought to have been rendered, then render such a judg- 
ment." In England the plaintiff alleged a fact which was 

1 Ulp. Fragm. 28, 12. « Gal. 4, 37. 



32 NATURE AND SOURCES OF LAW 

false, and the courts did not allow the defendant to con- 
tradict it. 

Sec. 80. One of the purposes for which the English 
courts allowed fictions was to extend their jurisdiction. 
A maxim says that to extend jurisdiction is the part of a 
good judge. When judges and their officers were paid 
largely by fees, there was a somewhat less exalted motive. 
The modes in which the courts employed fictions for this 
end are familiar to all readers of Blackstone, but perhaps 
you will let me remind you of some of them. 

Sec. 81. Of the three superior Courts of Law, the 
King's Bench, the Common Pleas and the Exchequer, the 
Court of Common Pleas alone had original jurisdiction of 
causes between subject and subject not involving violence 
or fraud ; but, as an exception, when a man was in the 
custody of the Marshal or prison-keeper of the Court of 
King's Bench, he could be sued also in the latter court. 
Now a plaintiff, wishing to sue in the King's Bench for an 
ordinary debt, would allege that the defendant was in the 
custody of the Marshal, and that therefore the case was 
within the jurisdiction of that court. The allegfation was 
false, but the court did not allow the defendant to con- 
tradict it. 

Sec. 82. By a like fiction, the Court of Exchequer 
extended its jurisdiction. It was properly a court of 
revenue only, but a debtor of the King was allowed to 
sue another subject in that court, on the ground that the 
defendant, by withholding from the plaintiff his due, made 
the plaintiff less able to discharge his debt to the King. 
Now a plaintiff, desiring to sue in the Exchequer to col- 
lect money or damages to which he was entitled brought 
a writ called qito mitms^ in which, after stating his claim 



LEGAL PERSONS 33 

against the defendant, he alleged that by reason of the 
withholding by the defendant of the plaintiffs due, the 
plaintiff was the less able to discharge his debt to the King. 
The allegation that the plaintiff was indebted to the King 
was false, but the court did not allow it to be contra- 
dicted. 

Sec. 88. These devices, however, were not applicable 
to suits for the recovery of a freehold interest, — that is, 
of an interest in fee or for life in land. Of such suits the 
Court of Common Pleas had sole jurisdiction. But suits 
to recover interest less than freehold — i.e. terms for years 
— could be brought in the King's Bench. Thomas Plow- 
den, then, desiring to sue in the King's Bench to recover 
a freehold interest from Henry Moore, who was in posses- 
sion, caused a suit to be brought in that court by one 
John Doe, in which it was alleged that Plowden had 
demised the land to Doe for a term for years, that Doe 
entered upon the premises demised, that one William 
Stiles, known as the casual ejector, entered upon the 
premises demised, and with swords, knives, and staves 
ousted Doe from the land. At the same time Plowden 
sent to Moore a letter purporting to be written to Moore 
by his " loving friend " Stiles, the casual ejector, saying 
that unless Moore appeared as defendant. Stiles would 
suffer judgment to be entered against him. Doe and his 
lease. Stiles and his swords, knives, and staves, were the 
creatures of fiction, but the court would not let Moore 
in to defend the suit unless he would confess lease, entry, 
and ouster. This fictitious proceeding was brought over 
to this country, and prevailed everywhere in the Colo- 
nies except in Massachusetts and New Hampshire. The 
fictitious Doe changed his name to Jackson in New York 



34 NATURE AND SOURCES OF LAW 

and to Den in New Jersey. I do not know if even now 
the old fiction has entirely disappeared in the United 
States. 

Sec. 84. There was no lack of other fictions in the 
English Law, in the shape of allegations which one of 
the parties made and the other was not allowed to deny, 
in order that the wine of new law might be put into the 
bottles of old procedure. Thus, in an action of trover to 
recover damages for the detention of goods to which the 
plaintiff was entitled, he alleged that he casually lost the 
goods and that they came to the possession of the de- 
fendant by finding. The most grotesque of these fictions 
was that by which, for the purpose of giving a remedy in 
England for a wrong done in the Mediterranean, it was 
alleged that the Island of Minorca was at London, in the 
parish of St. Mary Le Bow in the Ward of Cheap ; and 
yet, perhaps, the palm must be given to that fiction of the 
United States Federal Courts that all the stockholders in 
a corporation are citizens of the State which incorporates 
it. This fiction is remarkable for the late date of its 
origin and for its absurd results. I shall return to it in 
another connection. 

Sbc. 85. As Maine says, in his *^ Ancient Law," ^ fictions 
of the historical kind are almost a necessity of the Law at 
a certain stage of human development. ^^They satisfy 
the desire for improvement, which is not quite wanting, 
at the same time that they do not offend the superstitious 
disrelish for change which is always present." But as a 
system of Law becomes more perfect, and its development 
is carried on by more scientific methods, the creation of 
such fictions ceases, and better definitions and rules are 

1 (5th ed.) 26. 



LEGAL PERSONS 35 

laid down which enable us to dispense with the historic 
fictions which have been already created. Such fictions 
are scaffolding, — useful, almost necessary, in construc- 
tion, — but, after the building is erected, serving only to 
obscure it. A chief objection to their continuance, to 
quote again from Maine,^ — is that they are " the great- 
est of obstacles to symmetrical classification. . . . There is 
at once a difiBculty in knowing whether the rule which is 
actually operative should be classed in its true or in its 
apparent place." 

Sec. 86' Thus, to take an instance from the practice 
as to the jurisdiction of the Court of Exchequer, of which 
I have spoken, should we say : The Court of Exchequer 
has jurisdiction only over matters concerning revenue, but 
as the ability of the King's debtor to pay the Sovereign 
may depend upon his collecting money due him from other 
subjects, the King's debtors may sue in the Exchequer to 
recover their debts, and if any one alleges that he is a 
debtor of the King's, the Court of Exchequer will hold it 
to be an uncontradictable truth ? Or should we say, all 
persons can sue in the Court of Exchequer to recover 
money due them if they allege in their declaration — truly 
or falsely is immaterial — that they are debtors to the King ? 

Sec. 87. The second class of fictions, according to 
Ihering's division, and which he calls dogmatic fictions, 
instead of being obstacles to symmetrical classification, 
have been introduced and used as aids to it. These dog- 
matic fictions are not employed to bring in new law under 
cover of the old, as are the historic fictions, but to arrange 
recognized and established doctrines under the most con- 
venient forms. 

1 (6th ed.) 27, 28. 



38 NATURE AND SOURCES OF LAW 

protect him or his property. Where the ability to will is 
really absent — as in the case of a new-bom child or of an 
idiot — the will which the Law attributes to the abnormal 
human being is not that of any definite individual, but 
that which is common to all, or the vast majority, of nor- 
mal human beings. 

Sec. 92. In the case of juristic persons, as we shall see, 
the application of dogmatic fictions is more complicated. 

Sec. 93. Included in human beings normal and ab- 
normal, as legal persons, are all living beings having a 
human form. But they must be living beings ; corpses 
have no legal rights. Has a child begotten but not born 
rights? There is no difficulty in giving them to it. A 
child, five minutes before it is born, has as much real will 
as a child five minutes after it is bom ; that is, none at all. 
It is just as easy to attribute the will of a guardian, tutor, 
or curator to the one as to the other. Whether this attri- 
bution should be allowed, or whether the embryo should 
be denied the exercise of legal rights, is a matter which 
each legal system must settle for itself. In neither the 
Roman nor the Common Law can a child in the womb 
exercise any legal rights.^ 

Sec. 94. But putting an end to the life of an unborn 
child is generally in this country an offence by statute 
against the State ; and in our Law a child once born is 
considered for many purposes as having been alive from 
the time it was begotten.^ 

^ See Windficbeid, Pand. $ 62. 

* The history of the development of the Common Law on this sabjeoi 
is curious. Originally, a child does not seem to have been considered for 
any purpose as living before his birth. The House of Lords, at the end 
of the seventeenth century, misunderstanding the existing law, and to the 
great disgust of the Judges, allowed a contingent remainder-man who was 



LEGAL PERSONS 39 

Sisc. 95. (Ill) Supernatural Beingt. We have hitherto 
been considering as persons, human beings. We have 
now to pass to beings who, though not human, are intel- 
ligent, i.e., supernatural beings. There is no di£5culty in 
giving legal rights to a supernatural being and thus 
making him or her a legal person. Supernatural beings 
— Gods, angels, devils, saints — must deal in earthly 
business and appear before earthly tribunals through 
priests or other human beings, but the relation which 
obtains between a God and his priests is like that which 
obtains between a normal man and his agents or attorneys, 
and not like that which exists between an infant and his 
guardian, where, as we have seen, the will of the latter is 
attributed to the former. There is no need of fiction 
here. In the society which recognizes the legal rights of 
a God, the existence of the God is a fact of revealed reli- 
gion, and that authority to represent him has been given 
by the God to the priests, is also a fact of revealed re- 
ligion. The society is dealing with what it believes to be 
a reality, just as much as when it deals with human 
beings ; it is not pretending that that is true which it 
knows or believes not to be true. 

Sec. 96. In several systems of Law, supernatural beings 
have been recognized as legal persons. This was true, to 
a limited extent, in ancient Rome.^ The temples were, 

begotten but not bom at the end of the partionlar estate to take. Then 
the doctrine was extended to coyer all cases where it was for the benefit 
of the child to be considered as having been bom. Is the doctrine to be 
extended to cases where such extension benefits, not the child, but others ? 
It is well settled that it does so extend in cases arising nnder the Rule 
against Ferpetoities ; whether it shoold be extended to other cases is yet 
9ub Jvdice. The leading authorities are collected in 6 Gray^s Cases on 
Property (2d ed.) 47-64, 718-720. 

1 8 Gierke, Deutsche Genossensohaf tsreoht, 62-65. 



40 NATURE AND SOURCES OF LAW 

perhaps, owned by the Gods. The Romans held very 
different views from those of Mr. Malthas. He who had 
the most children served the State best, and so, a privilege 
to take by will was given to those women who had at least 
three children, — ju9 trium Itberorum. In the coarse of 
time, the same privileges were given as a reward to per- 
sons who had not had three children, or, indeed, any chil- 
dren at all, bat the same name was retained, and so, oddly 
enough, to Diana, of all persons in the world, or rather 
out of the world, was given the Jus trium liberorum^ 

Sbo. 97. When, under Constantine, Christianity took 
the place, as the State Church, of the older religions, it 
might have been supposed that the Christian God and his 
saints would have become legal persons ; but this does not 
seem to have been the case. The early Christians were 
wary of imitating the religious establishments of the Em- 
pire ; in their own organizations they had recourse more 
readily to the analogies and precedents of the civil admin- 
istration* The Church building^ and charitable institu- 
tions were owned by corporations, or were like the 
modem German stiftungeny and Justinian ^ enacted that if 
any one should make Christ his heir, the church of the tes- 
tator's domicil should be the heir, and, if any archangel or 
martyr was named as heir, his oratory should be deemed 
the heir. I will return later to this law of Justinian's, in 
connection with juristic persons. Though the sound view 
undoubtedly is that in the Civil Law of the present day 
there are no supernatural persons, yet the opposing view 

1 Dion Casdos, 65, 2 ; Ulp. Fragm. 22, 6 ; 1 Pernice, Labeo, 260-268. 
It should be observed that it is to Diana Sphesiaca that Ulpian allows 
testamentary privilege, and it is perhaps not clear that the Ephesian 
Artemis did not have children. 

« 1 Cod. 1, 2, 26. 



LEGAL PEBSONS 41 

has not been without defenders. Thus Uhrig says : 
"Since the Church (^Kirehengemeinde^ is the bride of 
Christ, she dwells with him in this house of God, and the 
property of the Church (^EircJienvermd'gen) belongs as 
dowry to her, but the Lord has durante matrimonio the 
property in her dowry." ^ 

Sec. 98. But in the Germany of the Middle Ages, God 
and the saints seem to have been often regarded as true 
legal persons.^ Sometimes the expression is odd enough: 
Thus, a donor declares, " Dat unse leve frauwe Maria die 
moder Christi Je9U und der ritter Sanctus Georgiu9 disset 
kirspels gruntherm tein^^ ; or ** Domini genetrici beatce 
MaricB in perpetuum pomdendem perdon^ " / or to Saint 
Widon " in perpetuam hereditaten^^^ or " Deo omnipotenti 
eju^que prcenominatis apostolis hereditario jure conceditur.^* 
Sometimes the supernatural person is charged with a legal 
duty. Thus, " Sanctum Spiritus tenetur 40 sol. pro duahu% 
mansis quas habuit in domo lateraliJ*^ " Sanctus Spiritus in 
Travemunde dat 5 raarcas annuatim de molendino et pratii 
et agris.^^ 

Sec. 99. In the Common Law, neither the Deity nor 
any other supernatural being has ever been recognized as 
a legal person. Blasphemy has been dealt with as a crime, 
but the legal person who has a legal right, and who alone 
can put it in motion, is, as in all crimes, the State. Very 
probably the motive of the State in giving itself this right 
to sue for blasphemy was, originally, because it was 
deemed that such prosecution was pleasant to the Almighty 
or would avert his wrath. Now such prosecutions are 

1 See Mearer, Der BegrifF und Eigenthtimer der heiligen Sachen, 
§ 67, p. 282, note 1. 

* 2 Gierke, Deatsohe GenosBenBchaftarecht, 627 et »eq» 



42 NATURE AND SOURCES OF LAW 

usually defended on the ground that the utterance is 
offensive to many of the community. 

Sec. 100. (IV) Aninud$. Thus far we have been 
considering human beings and supernatural beings, but 
animals may conceivably be legal persons. Fint^ legal 
persons because possessing legal rights. In the systems 
of modern civilized societies, beasts have no legal rights. 
It is true there are everywhere statutes for their protec- 
tion, but these have generally been made, not for the 
beasts' sake, but to protect the interests of men, their 
masters. Such statutes have sometimes, however, been 
enacted for the sake of the animals themselves. It has, 
indeed, been said that statutes passed to prevent cruelty 
to animals are passed for the sake of men in order to pre- 
serve them from the moral degradation which results from 
the practice of cruelty, but this seems artificial and unreal; 
the true reason of the statutes is to preserve the dumb 
creatures from suffering. Yet, even when the statutes 
have been enacted for the sake of the beasts themselves, 
the beasts have no rights. The persons calling upon the 
State for the enforcement of the statutes are regarded by 
the Law as exercising their own wills, or the will of the 
State or of some other organized body of human beings. 
The Law of modem civilized societies does not recognize 
animals as the subjects of legal rights. 

Sbo. 101. It is quite conceivable, however, that there 
may have been, or, indeed, may still be, systems of Law in 
which animals have legal rights, — for instance, cats in 
ancient Egypt, or white elephants in Siam. When, if 
ever, this is the case, the wills of human beings must be 
attributed to the animals. There seems no essential dif- 
ference between the fiction in such cases and in those where, 



LEGAL PERSONS 43 

to a human being wanting in legal will, the will of another 
is attributed. 

Sec. 102. Seamdly^ animals as legal persons, because 
subject to legal duties. In modem systems of law, beasts 
are not subject to legal duties. As we have seen, the 
power of obeying or of understanding a command is not 
necessary for the creation of a duty. And, if a dog is 
unable to understand the words of a statute, so is an idiot 
or a new-bom child. But in order that any being may 
become a legal person by virtue of a command issued by 
organized society, the command must be directed to that 
being. Now, the State does not give commands to dogs. 
If there is an ordinance that the town constable may kill 
all dogs without collars, the constable may have a legal 
right to kill such dogs, but the dogs are not under a legal 
duty to wear collars. A legal duty to put collars on the 
dogs is imposed on their masters. 

Sbg. 103. In modem Jurisprudence, animals have no 
legal duties, but in early stages of the Law, they seem to 
have been regarded for some purposes as having legal 
duties, for a breach of which they were liable to be pun- 
ished. The fiction here, if fiction there was, did not con- 
sist, as would be the case if legal rights were given to 
beasts, in attributing to them the will of human beings, 
but in attributing to them a capacity to receive commands 
directed to them. It is likely, however, that there was 
often no conscious use of fiction at all. It was genuinely 
believed that the animals really knew that they were dis- 
obeying the Law. Moreover, it is highly probable that in 
primitive times such dealings with beasts originated in a 
cmde notion of vengeance, without any distinct attribution 
of intelligence or will to the animal, and when such practices 



44 NATURE AND SOURCES OF LAW 

sarvived, they often, it is likely, took on the form of reli- 
gious expiation, rather than of ponishment for breach of 
legal duty.^ 

Seo. 104. This idea of regarding an animal as the sub- 
ject of a legal duty prevailed among the Jews and the 
Greeks. Thus, *^ And surely your blood of your lives will 
I require ; at the hand of every beast wiU I require it, and 
at the hand of man " ; ^ *^ If an ox gore a man or a woman 
that they die ; then the ox shall be surely stoned and his 
flesh shall not be eaten." ^ So in Plato, " 'E^v S* apa vtto- 
^vyiop 4j ^&ov aWo ri if)OV€wrg rivd • • . hre^lrwrav fikp oi 
irpofTTiKOvr^ rov ifxiuov r^ /creipoirn SiaBuca^dpTwv Be r&v 
&ypov6fMiov oUriv hv koX oFrSaoK irpoardfy 6 irpotn^KWPf rb 
Bk 6il>Kop l^<o T&v ip(0v T^ X^P^ airoKTelvaPTa^ hiopUrcu,,^'* ^ 

Sec. 105. The most remarkable instances of the treat- 
ment of beasts as having legal duties are to be found in 
the judicial proceedings against them which were had in 
the Middle Ages. They were summoned, arrested, and 
imprisoned, had counsel assigned them for their defence, 
were defended, sometimes successfully, were sentenced and 
executed. I should like to dwell on this curious develop- 
ment of manners and belief, which is little known, but it is 
so foreign not only to any actual but to any rational juris- 
prudence that I do not feel as if I ought to linger on it 
longer.* 

1 See Holmee, Com. Law, 7-24. * Gen. iz. 6. 

» Ex. xxi. 28. * Plato, De Legibus, IX, 12. 

* See Amira, Thierstrafen, especially p. 6 and p. 16, note 6 ; Franklin, 
La Tie Privto d^antrefois, Lea Animaoz, Tom. 2, p. 266 ; Osenbrilggen, 
Bechtsgeschichtliche Studien, 139-149 ; Farmer Carter's Dog Porter, 2 
Hone, Every Day Book, 198 ; Quoidam AUachiamerUa, c. 48, pi. 10-13. 

Since writing the above I have seen the Criminal Prosecution and 
Punishment of Animals, by E. P. Evans, New York, 1906. It is of great 
value as a book of reference. 



LEGAL PERSONS 45 

Seo. 106. (V) Inanimate Things. Now to go a step 
outside the domain of living beings. Inanimate things 
may conceivably be legal persons. Firsts legal persons as 
possessing legal rights. Inanimate things may be regarded 
as the subject of legal rights, and, as such, entitled to 
sue in the courts. Such, perhaps, were some of the temples 
in pagan Rome,^ and such seem often to have been church 
buildings and the relics of the saints in the early Middle 
Ages. Thus, we find gifts ^^ad sanctum locum ubi ego 
jacere ct/Lpio^ i.e. apud sanctum AJbanwm^^^ ^^ locis sanctorum 
coriferimus "/ ^^ lods venerabilibus " / ^^ tradidi ad rdiquias 
Sancti Salvataris et Sanctce MdricB et in manus Liudgeri 
preshiteri^ qui easdem reliquias procurabat, portionem heredi- 
tatis mecB^* ; ^Hrado ad monasterium quod dicitur Scaphusa 
et est exstructum • . . uii," etc. These and many like 
examples will be found in Gierke.^ If an inanimate thing 
is regarded as the subject of a legal right, the will of a 
human being must, as in the case of an animal, be attributed 
to it, in order that the right may be exercised. 

Sec. 107. Secondly^ inanimate things as legal persons, 
because subjects of legal duties. As is the case with 
animals, inanimate things have been regarded as the sub- 
jects of legal duties, — I was about to add in primitive 
times, but, as we shall see, the notion has persisted even to 
our own days. If there was a fiction here, it was not in 
attributing the real will of a human being to the thing, 
but in assuming that the thing had an intelligence of its 
own. It would seem, however, that there was often no 
conscious fiction, but some vaguely realized belief that the 
thing had a true intelligence and will ; and very often, as 

^ Bat see 2 Fachta, Inst., { 191, p. 7 ; 1 Meorer, { 63. 
3 2 Deutsche Genossenschaftsrecht, 64^-646. 



46 NATURE AND SOURCES OF LAW 

in the case of animals, the idea of religious expiation had 
a great, if not a chief, part in the proceedings against 
inanimate things. 

Sbg. 108. In Greece, proceedings against inanimate 
things were not, it would seem, infrequent.^ 

Sbg. 109. In the Common Law, this attribution of 
guilt to inanimate things, and this mixture of the idea of 
punishment with that of expiation, appears in the form of 
deodands. When a man had been convicted of homicide, 
the weapon or other article with which the deed was done, 
the thing itself or its value, was called a deodand, and, as 
its name imports, was at first forfeited to the Church, but 
afterwards to the Crown. This is the reason for the 
allegation of the value of the lethal weapon which appears 
in the old indictments. Thus, on an indictment for murder 
or manslaughter by stabbing, the indictment alleged that 
the prisoner then and there struck the deceased with a 
certain knife of the value of one shilling, which he then and 
there in his right hand held. And in England the doctrine 
was applied as late as 1842,^ in the case of a locomotive 
engine, and it should be added that anything which had 
killed a man was liable to be forfeited as a deodand, though 
there had been no homicidal intent on the part of a human 
being ; and in that form there have been precedents in the 
early history of this country. In the records of the 
Colonies of Plymouth and Massachusetts, there are in- 
stances of the forfeiture of a boat or a gun as having 
caused the death of a man. 

Sec. 110. Judge Holmes, in his book on the Common 

1 Besides the citatioiis in Holmes, Com. Law, 7, S, see Demosthenes, 
Karik' ApiaT6Kp, { 18. 

> Queen y. Eastern Counties B. Co., 10 IL & W. 68. 



LEGAL PERSONS 47 

Law, has shown how the imagination that there must be 
life in a moving object affected the law of deodands, and, 
as he justly remarks, this notion appears most conspicu- 
ously and persistently in the Admiralty. In the Admi- 
ralty, proceedings in rem are brought against ships. This, 
however, at the present day, is a mere form. But a most 
remarkable instance of application in the substantive law 
of this barbarous notion of a ship's intelligence occurred 
only some forty years ago. On land, when a man's vehicle, 
say his automobile, is taken by the Law out of his custody, 
law and justice alike, in all civilized countries, impose on 
him no liability for accidents that the vehicle may cause 
while in the hands of the official. A sheriff takes my 
horse and wagon on attachment or execution against me ; 
his bailiff in charge of them runs over a woman; I am 
not liable. An officer is appointed to take charge of car- 
riages and drive them over a bridge ; he takes possession, 
by virtue of his authority, of your carriage, and an acci- 
dent occurs; you are not responsible. Suppose, now, a 
ship is in the hands and under the orders of a pilot, whom 
the owner and master have been compelled to take against 
their will, and, by the pilot's negligence, a collision en- 
sues. The Supreme Court of the United States, in 1868,^ 
held that in such a case the ship was guilty. Judge 
Holmes^ speaks of this decision with more tenderness 
than it deserves. 

Sbc. 111. (VI) JuT%9tie Perfons. Thus far we have 
been dealing with cases where a legal person, the subject 
of a legal right or a legal duty, is, or is believed to be, 
some one or something real. Where there has been a 
fiction, it has consisted in attributing to or assuming for 

1 The China, 7 WaU. 58. * Com. Law. 28. 



48 NATURE AND SOURCES OF LAW 

such real entity a will which he, she, or it does not, in 
truth, possess ; but this is the only fiction. The being or 
thing to which this will is by fiction given is a reality, — 
a man, a dog, a ship. We have now to consider juristic 
persons, so called. 

Sec. 112. The power of conceiving an abstraction which 
is imperceptible to any of the senses, which yet has men 
for its visible organs, and which, although not having a 
will and passions, may yet have the will and passions of 
men attributed to it, this power is one of the most won- 
derful capacities of human nature. 

Sec. 118. If not a necessity of their nature, it is a power 
which the races of men seem to find no difficulty in exer- 
cising. If there was a time when man was without the 
personifying faculty, it is found in full play in the early 
history of civilization. Among no people has the con- 
ception of the personality of the State been more highly 
developed than among the Greeks, and the idea of the 
corporation was recognized by the Romans. 

Sec 114. One dislikes to call such an entity " fictitious," 
because "fictitious" is what Bentham would call a "dys- 
logistic epithet," and the same objection applies, though 
in a less degree, to the use of "artificial." Perhaps, 
" juristic " is best. But, after all, there is no objection 
to calling such abstract entities fictitious, if we bear in 
mind Ihering's distinction between historical and dog- 
matic fictions. This fiction of an abstract entity is not an 
historical fiction, like that of the casual finder in trover, 
or of the casual ejector, invented to bring in new law or 
to extend remedies, but it is used to classify and arrange 
old and acknowledged law. 

Sec. 115. The usual form of a juristic person is a cor- 



LEGAL PERSONS 49 

poration. Indeed, corporations are the only juristic per- 
sons known to the Common Law.^ What is a corporation? 
In the first place^ there must be a body of human beings 
united for the purpose of forwarding certain of their 
interests. Secondly^ this body must have organs through 
which it acts; it must be an organized body of men; 
neighbors turning out to hunt down a robber do not form 
a corporation. The interests of an organized body of men 
cannot be effectually forwarded unless those interests are 
protected by the State, and to give this protection, legal 
rights must be created, and the organization through which 
the body is to act must be recognized by the State. If a 
body of men acts through an organization which the State 
does not recognize, the Law will not give effect to the act 
as the act of the organization, though it may be the act of 
some or all of its members.' 

Sbo. 116. As I have said, to effect the purposes of a 
corporatioi^ its interests must be protected by the creation 
of rights. To whom shall these rights be given? Whom 
shall the State recognize as the person or persons on whose 
motion the rights are to be exercised? That is, whose 
are the rights? 

Sec. 117. Putting all fictions aside, let us get down to 

^ Except the State. 

* Corporations de facto, A statate has enacted that an organized body 
of men shall become a corporadon apon performing certain acts. Some- 
times in such a case although the body has failed to perform the acts, the 
Law will yet accord certain of the rights and impose certain of the duties 
which would have been created had the acts been performed. This means 
that the body is recognized by the State as a corporation for certain pur- 
poses, but not for all. Such bodies are called corporations de facto. They 
are discussed by my colleague in the Harvard Law School, Professor 
E. N. Warren, in two valuable articles in the Harvard Law Beview, 
20 H.L.B. 456 ; 21 H.L.B. 305. 



50 NATURE AND SOURCES OF LAW 

the ^^hard pan" of fact. A corporation is an organized 
body of men to which the State has given powers to protect 
its interests, and the wills which put these powers in motion 
are the wills of certain men determined according to the 
organization of the corporation. 

Sec. 118. How is this state of things to be brought 
within the scheme of rights and duties upon which the 
superstructure of the Law rests? In this way. The 
powers granted by the State are not the rights of the men 
whose wills put them in motion, for it is not the interests 
of those individual men that are protected ; but, by a dog- 
matic fiction, their wills are attributed to the corporation, 
and it is the corporation that has the rights. 

Sbc. 119. Now it is to be observed, that thus far there 
is nothing peculiar to juristic persons. The attribution of 
another's will is of exactly the same nature as that which 
takes place when the will, for instance, of a guardian is 
attributed to an infant. How far this attribution is al- 
lowed to occur in the one or the other class of cases is a 
question of positive law, but, so far as the process takes 
place, and by whatever name it is called, it is of essentially 
the same character. With all legal persons, except normal 
human beings,^ there is the same fiction of attributing the 
will of a man to some one or some thing other than him- 
self — it matters not who or what that some one or some- 
thing else is. The step is as hard to take and no harder, 
whether he, she, or it be an idiot, a horse, a steam tug, or a 
corporation. Neither the idiot, the horse, the steam tug, 
nor the corporation has a real will ; the first three no more 
than the latter. But with the juristic person we have an 
additional fiction. That additional fiction consists in f orm- 

^ Excepting also sapematoral beings. 



LEGAL PERSONS 51 

ing an abstract entity to which the wills of men may be 
attributed. 

Sbc. 120. This is the common view, but it has been 
contended that there is no fiction here, that the corpora- 
tion is a real thing. Is the corporation to which these 
wills of individual men are attributed a real thing, or only 
a thing by fiction, a fictitious entity? If it is a fictitious 
entity, we have a double fiction ; first by fiction we create 
an entity, and then by a second fiction we attribute to it 
the wills of individual men. If the corporation is a real 
entity, then we have need only of this second fiction. 

Sec. 121. Whether a corporation is a real or only a 
fictitious entity is a question which I shall not undertake 
to solve. I fear I should find no end in wandering mazes 
lost. According to an old saying, everybody is bom 
either a nominalist or a realist. And what is true of all 
the world is true probably of my hearers. I shall not 
undertake to supply any of you with a new set of innate 
ideas. And I shall not attempt to answer the question 
whether corporations are realities or fictions, because to 
do so is unnecessary for my purposes. The facts are be- 
yond dispute ; the State imposes duties upon people for 
the protection of the interests of the organized bodies of 
men called corporations, and the rights correlative to these 
duties it allows to be set in motion by the wills of indi- 
vidual men determined by the organization of the cor- 
poration, which wills it attributes to the corporation. 
Whether the corporation be real or fictitious, the duties 
of other people towards it and the wills which enforce 
the rights correlative to those duties are the same. The 
Law is administered, and society is carried on in precisely 
the same way on either theory. 



52 NATURE AND SOURCES OF LAW 

Sec. 122. It should be observed that even if a cor- 
poration be a real thing^ it is yet a fictitious penan^ for it 
has no real will, but it would be a fictitious person only as 
an idiot or a ship is a fictitious person. The reason why 
idiots and ships have not been called juristic persons, and 
classed with corporations, is that in the Roman and the 
Common Law the prevalent idea seems to have been that 
corporations were fictitious entities, were things only by 
fiction, and that, therefore, in their case, in distinction 
from the case of idiots and ships, there was need, as I have 
said, of a double fiction, and they ought to be put under 
a separate head and distinguished by a different name, 
viz. juristic persons. 

Sbc. 123. Under the Roman Law there was little dis- 
cussion as to the nature of corporations, and under the 
Common Law there has been little. Such discussion is 
alien to the eminently practical character of both systems. 
The prevailing notion has undoubtedly been that a cor- 
poration was not a real thing, but I do not think there 
can be said to be any settled opinion to that effect. 

Sec. 124. Before leaving the subject I ought to notice 
a theory which of late years has grown up in Germany, 
and which holds not only that a corporation is a real thing, 
but that it has a real will. Gierke, who is the chief ex- 
pounder of this theory, declares that it is not original 
with him, but was first taught by Beseler. He confines 
the doctrine to the old German Law and admits that in 
the Roman system the corporation was a fictitious person ; 
indeed, he maintains that view with no little warmth 
against some writers who had attempted to give real per- 
sonality to the Roman corporation.^ He believes that in 

1 3 Gierke, Deutsche Genosaenachaftsrecht, 131. 



LEGAL PERSONS 53 

Germany the old national view and the Roman have been 
struggling for the mastery, and that the former is getting 
the better of the contest. His view will be found set 
forth briefly in the article by him on Juristische Person 
in Holtzendorff's Lexicon. 

Sec. 125. Assuming that a corporation is a real thing, 
the question whether it can have a real will or not depends 
on whether there is such a thing as a general will. I do 
not believe that there is. There may be agreeing wills, but 
not a collective will; a will belongs to an individual. 
When we speak of the will of the majority on a point, 
we mean that on that point the wills of the majority 
agree. A collective will is a figment. To get rid of the 
fiction of an attributed will, by sajring that a corporation 
has a real general will, is to drive out one fiction by 
another.^ 

Sec. 126. On and about this question there has been an 
enormous number of pages written. But difference in 
practical results from adopting this theory there seems to 
be none. Under it acts and forbearances are imposed on 
men as duties for the purpose of protecting the interests 
of corporations ; the rights corresponding to these duties 
are given to the corporation ; the actual wills by which in 
fact these rights are exercised are the wills of men desig- 
nated in accordance with the organization of the corpora- 
tion and the positive Law of the State; and this is just 
what happens under the theory of the Roman and the 
Common Law. In short, whether the corporation is a fic- 
titious entity, or whether it is a real entity with no real 
will, or whether, according to Gierke's theory, it is a real 
entity with a real will, seems to be a matter of no practical 

1 1 WIndaoheid, Fttnd. (8th ed.) § 49 n. 8. 



54 NATURE AND SOURCES OF LAW 

importance or interest. On each theory the duties imposed 
by the State are the same, and the persons on whose actual 
wills those duties are enforced are the same. 

Sec. 127. I ought to add that the lamented Professor 
F. W. Maitland was a convert to Gierke's views. No one 
holds Maitland's memory in more respect or affection than 
I, but it must be remembered that his greatness lay in his- 
toric investigation, not in dogmatic speculation. 

Sbc. 128. I have spoken of the rights of corporations. 
As to their duties, a word will suffice. The State imposes 
legal duties upon corporations, to protect the rights of 
other persons, including the rights of individual members 
of the corporation. How the State will enforce these duties 
is matter for the positive Law of the State. It makes no 
difference whether the corporation is a fictitious person, 
or a real person with a fictitious will, or a real person with 
a real will. For instance, take the question of the liability 
of a corporation for a tort, say for slander. The corpora- 
tion's liability or non-liability may be held on either theory. 
The existence of the liability or non-liability depends 
upon the positive prescriptions of the Law. 

Sec. 129. Who creates the abstraction known as a cor- 
poration? It is sometimes said that all corporations are 
ci*eatures of the State. This is not literally accurate. 
Whenever men come together for a common purpose, it is 
the course of human nature for them or their leaders to 
personify an abstraction, to name it, and to provide it with 
organs. Such organized bodies may be of every degree of 
importance, from the Roman Catholic Church down to the 
poker club that meets at a village tavern, 

Sbc. 180. To say that all such organizations are in truth 
creatures of the State, because they exist only by its suf- 



LEGAL PERSONS 55 

ferance, might be unobjectionable, if the control of the 
State oyer its citizens was absolute. If it had the power 
of preventing any communication of thought on religious 
subjects by words or signs, no church could exist in the 
territory of that State ; but it has no such power ; and 
organized societies which a State has forbidden to exist 
have often continued in spite of its efforts. The Catholic 
Church existed in England in the reign of Queen Eliza- 
beth ; the Carbonari existed in Italy under the Austrian 
and Bourbon rules ; the Knights of the Golden Circle ex- 
isted in the Northern United States during the Civil War. 

Seo. 181. But that over which a State has the sole au- 
thority is the making of a corporation into a juristic person. 
The State may not have created a corporation, but unless 
it recognizes it and protects its interests, such corporation 
is not a juristic person, for such a corporation has no legal 
rights. 

Seo. 182. Corporation% Sole. The term ** corporation 
sole " is used in the Common Law. When a man who has 
rights and duties by virtue of holding an office or exercising 
a function, dies, one of three things may happen — the 
rights and duties may come to an end, or they may pass 
to his heirs, or they may pass to his successors. Rights 
and duties enjoyed or imposed by virtue of an office, pass- 
ing to heirs, or hereditary offices, are hardly ever created 
at the present day, but in England a few have come down 
from early times. 

Sbo. 188. In some cases where like rights are enjoyed by 
successive occupants of an office, acorporation sole is created. 
In some cases, but not in all. Successive clerks of a city 
council may have the same right, as, for instance, to a salary, 
but the succession of such clerks does not usually form a 



56 NATURE AND SOURCES OF LAW 

corporation sole. Among the qualities of a corporation 
sole, which distinguish it from a mere succession of offi- 
cers or persons exercising the same rights, the most im- 
portant, apart from matters of procedure, seem to be, that 
if a corporation sole exists, an occupant of an office can 
generally acquire property for the benefit of his successors 
as well as of himself ; that he can generally recover for in- 
jury inflicted on property pertaining to the office while 
such property was in the hands of his predecessor ; and 
that he can sometimes enter into a contract which will bind 
or inure to the adyantage of his successors. 

Sbo. 184. Whether a corporation sole is in any case 
created is a matter for the positiye Law of any particular 
jurisdiction. They are not uncommon. A bishop of the 
English Church is a corporation sole ; so is the minister of 
a Congregational parish in Massachusetts. 

Sbo. 185. A corporation sole does not seem to be a ficti- 
tious or juristic person; it is simply a series of natural 
persons some of whose rights are different and deyolve in 
a different way from those of natural persons in general. 

Seo. 186. 8t{fUmgen. Corporations are, as I have said, 
the only juristic persons known to the Common Law. 
Property is neyer made into a juristic person. If property 
is giyen in England or in the United States for charitable 
uses, it is always yested in some man or corporation which 
holds it for the charitable uses, and is the subject of the 
rights and duties concerning it. If a testator deyotes 
property to a charitable purpose, but names no one to carry 
out the purpose, the title to the property yests in the heir 
or executor until some other trustee is appointed to take 
it. The notion of a subjectless right or duty is utterly 
alien to the Common Law. 



LEGAL PERSONS 57 

SsG. 187. But in Germany there are juristic persons 
which are not corporations and which have no members. 
These are known as Stiftungen. They consist of property 
devoted to charitable uses, the title to which is not vested 
in individuals or corporations. As this legal concept is 
interesting and unfamiliar, I may be excused for dwelling 
on it a moment. 

Sec. 188. In pagan Rome, eleemosynary institutions 
for the relief of the poor and suffering, so far as they ex«- 
isted at all, were institutions of the State, and their admin- 
istration was part of the functions of the State. They 
were simply portions of the machinery of government. It 
was only upon the establishment of the Christian Church 
that institutions of the kind independent of the State came 
into existence. They were probably regarded as corpora- 
tions.^ 

Sec. 189. All fiction apart, what actually takes place in 
case of a %tiftungt Persons are subjected to duties with 
reference to property which has been devoted to charitable 
purposes. These duties are enforced on the motion of 
certain persons, but these persons have no rights, for it is 
not their interests which are protected, nor are there any 
other persons to whom their wills can be attributed; they 
exercise their wills not for the sake of any definite persons, 
but for the sake of certain objects ; that is, in the case of 
a %tiftmig (which, as I have said, is a conception unknown 
to the Common Law) there are duties, to which there are 
no correspondent rights residing in definite men or corpo- 
rations. By a dogmatic fiction the property in question is 
constituted a juristic person, and the fiction is a justifiable 
and beneficent one, because the duties which exist when a 

1 See Appendix L 



58 NATURE AND SOURCES OF LAW 

itiftung is created are of the same kind as those which 
exist as between natural persons, and the employment of 
the fiction enables them to be classified and treated together. 

Sec. 140. The view taken in the preceding section 
€L8toihe actual state offacU in the case of a $tiftung agrees, 
I think, in substance with the theory advanced by Brinz 
in his Lehrbuch der Pandekten. But Brinz denied that 
a 8t\ftunff was a juristic person. He maintained that there 
could be legal duties without legal rights, and that the 
^ftung was an instance of it. This theory has excited 
a hot and, more G-ermanieo^ a voluminous controversy. 
Brinz's opponents declare that a legal duty without a 
legal right is unthinkable, and that^t legal right without 
a subject is equally unthinkable, and that therefore the 
allowance of a stiftimg necessarily carries with it the 
allowance of a juristic person. We may congratulate 
ourselves that in the Common Law no such controversy 
can arise, for the conception of ft'tftmigen finds no place in 
our system. 

Sec. 141. A word with regard to two entities which 
are found in the Roman Law, and which, perhaps, should 
be included among juristic persons, Fi%cu% and Heredity 
jacens. 

Sec. 142. FUciu. Originally a basket of woven twigs 
used for keeping money, the term came to mean the im- 
perial treasury, in distinction from the cerarium or public 
treasury, but in course of time the fisc absorbed the 
ovarium and became the treasury of the State. The fisc 
is never called a person, but passages in the Digest and 
the Code show it to us as a creditor and a debtor and a 
party to a suit ; that is, as a subject of legal rights and 
duties. The Romans do not seem to have thought much 



LEGAL PERSONS 59 

on the personality of the fisc, or to have compared it with 
that of a corporation. They appear to have considered it 
distinct from the State. In modem times, the term con- 
tinues to be used in some systems of Law derived from the 
Roman, and in them fisc is now defined as the State in its 
relation to property. If the term is to be retained, this is 
a good definition, but in this sense it seems superfluous, 
and that it is best to do away with the word as a legal 
term altogether, and to speak of the State as the subject 
of those rights and duties which have been attached to the 
fisc.i 

Seo. 148. JSeredttas Jaeens. In the interval between 
the death of the ancestor and the moment when the heir 
accepted the inheritance, the Romans placed the hereditas^ 
commonly* known by the civilians as the hereditas jacens. 
This heredittu was an abstraction, and probably, to a 
limited extent at least, a juristic person. There is noth- 
ing corresponding to the hereditas jacens in the Common 
Law.* 

Seo. 144. One point more as to legal rights may be 
noticed. Ihering, who is always worth listening to, even 
if one does not agree with him, while, in opposition to 
Brinz, he denies most strenuously the conceivability of a 
right without a subject, has a view of his own on rights 
not only of juristic persons but of all legal persons, which 
he has elaborated at great length.' He divides a right 
into two sides, — its active side, ^^ the legal position which 

^ On the fiflc and its character, see 8 Gierke, Deutsche Genoesenachafts* 
recht, 68-41 ; 1 Karlowa, ROm. Rechtsgeschichte, { 04 ; 1 Holtzendorff, 
Bechtslez. sub. voc 

* On the KeredU<u jaeens, see Appendix II. 

* Passive Wirkungen der BechU, 10 Jahrb. fttr Dogmatik, 887-680. 



60 NATURE AND SOURCES OF LAW 

the right has as a result for the one to whom it belongs'' ; 
and the passive side, ^ the position of legal obligation or 
limitation in which a person or thing is placed through 
the right." He admits that as a permanent situation one 
side cannot exist without the other, but he insists that 
temporarily the passive side can exist without the active, 
and that this temporary divorce may take place, either in 
the interval between the disappearance of one subject and 
the appearance of another, or, in the case of a right on a 
condition precedent, before the condition is fulfilled. He 
compares such a right to a bed which has been made up, 
but which is yet empty; and he puts a case like this: 
A. owns land and, as such owner, has a right of way over 
land of B. ; A. abandons the land, so that it is without 
an owner, which state of things can occur in the Civil 
Law, though with us a man who has become seised of 
land cannot renounce seisin. Here, Ihering says, there is 
no longer any one to whom the right of way belongs, but 
the right still exists on its passive side, and when the 
dormant tenement which was abandoned is again occupied, 
say by C, then the right comes again into full existence 
on both sides. The case of the hereditaa jaeem furnishes 
him with another instance. 

Sbo. 145. One criticises a writer of Ihering's ability 
with diffidence, but has he not been deceived here by a 
form of words ? Certain facts have given A., the former 
occupier, a right to deal with B.'s land in a certain way, 
to put it to a certain use, to walk over it; and certain 
facts give C, the present occupier of the premises aban- 
doned by A., a similar right to deal with B.'s land, — a 
iimilar right, but not the same right. The first right has 
ended ; a new one has begun. 



LEGAL PERSONS 61 

Seo. 146. Even if we regard the right of C. as the 8ame 
thing as the right of A., yet, in the interval between A.'s 
occupation and C.'s ocoapation, if there is a suspension of 
the right, it is of the whole right, — not only of the active 
side but, of the passive side as well. Both active and 
passive sides of the right must come into existence to- 
gether; indeed, the separation between the two sides 
which Ihering maintains, and the possibility of one exist- 
ing without the other, is unthinkable. Ihering himself 
admits that it is unthinkable as a permanent condition, 
and, in truth, it is just as unthinkable as a temporary con- 
dition. There cannot, even temporarily, be an inside 
without an outside, a front without a back. 

Sec. 147. But, it may be said, in the case supposed, let 
us -^assume that after A. has abandoned his land, and 
before C. has come into occupation, B. has obstructed the 
way. Cannot C, after he has come into occupation, com- 
pel B. to take down the obstruction, or to pay damages 
for having put it up? I am not sufficiently familiar with 
the Civil Law, to know whether this is the case, but cer- 
tainly there might be a system of law in which it was so. 
But what would this prove ? Only that B. may be under 
a legal duty; that is, may be commanded by the State to 
do certain acts which C. has a right to have done, and this 
legal duty may arise from certain facts (including acts by 
B.) having happened before C. acquired any right. But 
this does not show that B. was under a legal duty to C. 
before C. had any right, but only that among the acts, 
forbearances, and events which cause a right to spring 
into existence, past acts and forbearances are often in- 
cluded, a proposition obvious enough. 

Sec. 148. Although Ihering is careful to indicate that 



62 NATURE AND SOURCES OF LAW 

lie is speaking of reehte in the subjective sense, or, as we 
say, rights, it seems possible that he has been misled by the 
ambiguous meaning of ^^reeht.^^ Beeht^ he says, does not 
exist for itself, but to forward certain purposes, — that the 
purpose is often a continuing one, intended, for instance, 
to last beyond the life of any particular individual. True 
of reckt in the objective sense, or, as we say. Law. Rules 
of Law maybe established for continuing purposes; and to 
g^ve effect to these purposes, rights (reehte in mbjectiven 
iinn) are given to successive individuals, but there is no 
need that these rights themselves be continuous. 



CHAPTER III 

THE STATE 

Seo. 149. In theology it may be that the chief artificial 
person is the Church; but in Jurisprudence the chief 
artificial person is the State. The State is an artificial 
person created in order that, by assuming it as the entity 
whose organs are the men engaged in protecting a mass of 
human beings from external and internal fraud and vio- 
lence, a unity of operation may be given to those organs. 

Sec. 150. Austin, in his " Province of Jurisprudence 
Determined,*' as one might suppose from his hatred of 
mysticism and unreality, will have nothing to do with arti- 
ficial persons.^ " The State,** according to him," is usually 
synonymous with ^the Sovereign.' It denotes the indi- 
vidual person, or the body of individual persons, which 
bears the supreme powers in an independent political 
society.'* I should be glad if I could follow Austin here, 
and get rid of the State altogether as a fictitious entity ; 
if we could take " State " as simply an equivalent for the 
whole number of men whose commands are obeyed in a 
given community ; but it seems to me this cannot be done, 
and that scientific Jurisprudence will be right in following 
the popular feeling and seeing, behind the individual man 
or men who " bear the supreme powers ** in any commu- 
nity, the abstract conception of the State of whom those 
men are to be deemed the organs. 

1 1 Jar. (4th ecL) 240, note. 



64 NATURE AND SOURCES OF LAW 

Sbo. 161. I will try to explain what I mean. It is 
conceivable that a number of men may obey the commands 
of an individual simply as being that individual. Not 
only is it conceivable, but in the history of the world there 
is reason to suppose that this has actually happened. But 
in the present generation, in all civilized and half -civilized 
countries, and in many barbarous communities, even when 
all the functions of government are in the hands or under 
the control of one man, yet he is obeyed not simply as 
Abdul-Aziz, or as Crazy Horse, but as Sultan of Turkey, 
or as Chief of the Pottawottamies. At any rate, when 
there is any binding rule for the succession to absolute 
power upon the death of the present holder, we have an 
entity other and greater than the individual Sultan or 
Chief, we have the State; as, in the most primitive of 
organizations, the family, the individuals who compose it 
are under the rule of one person, not because he is Noah 
or Abraham, but because he is the father ; and on his 
death the organization does not come to an end, but the 
power over the family passes to another person, often in 
accordance with rules of great complexity. 

Sec. 152. But let us take a case where it is even clearer 
that there is some recognized power behind that of the 
mere sum of the so-called sovereign individuals. If we 
assume, with Austin, that Parliament is the sovereign of 
England, that does not mean that the individuals who 
happen to be King, Peers, and Representatives of the 
Commons as an unorg^anized horde, or that even a majority 
of them, are the sovereigns of England, but that the King, 
the House of Lords, and the House of Commons, acting 
separately and in accordance with highly artificial rules, 
is the sovereign. The abstract entity of the State which 



THE STATE 66 

creates those roles lies behind the sovereign, who is only 
its organ. 

Sec. 158. Who creates the State, and on what basis 
does its continuous existence rest ? In eyery aggregation 
of men there are some of the number who impress their 
wills upon the others, who are habitually obeyed by the 
others, and who are, in truth, the rulers of the society. 
The sources from which their authority flows are of the 
most diverse character. They may be, or may pretend to 
be, divinely inspired. It may be their physical strength, 
their wisdom, their cunning, their virtues, their vices, — 
of tenest, perhaps, their assiduity and persistence, — that 
have given them their power. The sources of this power 
are, indeed, so various, and its mode of action so subtle 
and often unknown even by those who exercise it, that it 
is impossible to define or closely trace it. 

Sec. 154. Such rulers may have official position, but 
often they are without it. A king-maker or president- 
maker, the favorite of a monarch, the boss of State politics, 
may pride himself on his private station. Nor does the 
machinery of government make any great difference. 
The real rulers of a country are probably not much more 
numerous in a democracy than in a monarchy. In a gov- 
ernment carried on by parties, which seems the only means 
yet discovered by which, in republics or limited monar- 
chies, government can be carried on with tolerable success, 
the subjection of thought and will to party leaders ia ex- 
treme. The mistakes and disasters that have occurred, 
by attempting to carry into practice the theory that the 
persons in whom is vested the machinery of government 
are the real rulers of a country, would be ludicrous, if the 
subject was not so serious. The condition of affairs, in 



66 NATURE AND SOURCES OF LAW 

many of the cities of the United States, is a good example 
of the evil. 

Sec. 155. These rnlers, sometimes suddenly and obvi- 
ously, as, for instance, in the establishment, by a success- 
ful rebellion, of an independent State, but oftener by 
degrees and obscurely, create or uphold, by personification, 
an abstract entity and impose a belief in it on the mass of 
which they form a part ; and they bring this abstract per- 
sonality to play a part in real life by giving it as organs 
real human beings, bound together in their action by arti- 
ficial rules. 

Sbc. 156. It is sometimes said that the State is the 
creature of the people. This is untrue, if it is meant that, 
as a fact, the people uphold it. The people, in that, as in 
other things, exercise no power against those to whom 
they have subjected their wills. The people no more have 
created and uphold the State because they have the 
physical strength to kill their rulers, than the horses of a 
regiment of cavalry have created and uphold the regiment 
because they have the physical strength to demolish their 
riders. 

Seo. 157. It must be borne in mind, however, that the 
creation and upholding of the personified abstraction of 
the State, and the furnishing it with organs, react power- 
fully on the rulers of the people. The fact that a person 
is an official of the State has some tendency to make him 
not only a formal but a real ruler ; the existence of the 
machinery furnishes an obstacle to change ; and the 
leaders have their own desires and imaginations profoundly 
affected by the existence, especially the long-continued 
existence, of the belief in the organized personality of the 
State. 



THE STATE 67 

Sec. 158. To satisfy their social instincts or desires, to 
accomplish objects which they could not singly achieve, 
these ruling spirits make this abstraction and personify it. 
In no other way could a body of rulers so changing, so 
indeterminable, effect their object. This personification 
of an abstraction, the naming of it, — family, village, 
tribe, city, state, — and the giving to it human beings as 
organs, seems a necessity of human existence. It is, at 
any rate, the way in which the world has developed. The 
Law of an organized society assumes the existence of that 
society; to deny it would be to commit suicide. 

Seo. 159. This use of a personified abstraction to give 
coherence and continuance to the efforts of the rulers is, 
as I have said, almost, if not quite, a necessity of human 
existence, but, like other necessary things, it has its good 
and its evil side. On the one hand, it has enormously 
fortified altruism under the guise of patriotism. That one 
should sacrifice his life for the greatest good of the greatest 
number, has always been a hard saying both to the head 
and heart, but many have found it sweet to die for the 
personified patria. Yet, on the other hand, the idea of 
the State is merely a device by which certain men — kings, 
governors, voters, judges, tax-gatherers, hangmen — are 
brought into concerted action for the benefit of human 
beings, and the notion that the State has a value apart 
from the men and women who compose it and will compose 
it, is a superstition. 

Seo. 160. Whether the power of the State is subject to 
any leg^ limitation, is a matter which has been much dis- 
cussed. The true view seems to be that the power of the 
State is unlimited, so far as is consistent with the abstract 
idea, which is the State ; its organs — legislative, judicial, 



68 NATURE AND SOURCES OF LAW 

and administrative — exist only to express its will, and they 
cannot contradict it ; but, after all, the State is but a per- 
sonified abstraction, — it is an idol, a dumb idol, whose use 
is to giye a title to its law-making and judgment-giying 
priests ; and the real rulers of the congeries of men, who 
are the members of the State, can limit the attribution to 
it of will. 

Sbo. 161. I belieye that the State is an abstraction 
created and furnished with organs by the real rulers of 
society. But it may tend to bring out the true idea of 
the State to consider some of the theories that have at 
various times prevailed as to its origin and the source of 
its authority. 

Sbo. 162. First That the organization of the State 
rests on the will of God. Of course, in a sense, every 
believer in a personal God must believe that all things 
which exist, including the organs of the State, exist by 
His will. But this is not what is meant. Nor, again, is 
it meant that the revealed word of God or the dictates of 
natural reUgion prescribe an obedience to the commands 
of the organized body called the State. This may well be. 
This duty to obey the commands of an existing organized 
body calls for obedience to any new government which has 
de facto established itself in place of an old, — for instance, 
in turn to the kingdoms, republics, and empires which have 
succeeded each other in France. While the revolutionary 
change is going on, there is room for no little casuistry, 
but when the change is completed, the duty to obey an 
existing government caUs for allegiance to the new gov- 
ernment. 

Sec. 168. The proposition that the organization of the 
State rests on the will of God calls for the belief that a 



THE STATE 69 

special form of organization — monarchical, for instance, or 
federal — is commanded by the Deity, and cannot be altered 
without sin. But if the will of God is the origin of the 
form of State organization, it must be His revealed will, 
for certainly that Parliament shall consist of King, 
Lords, and Commons, or that the President's veto can be 
overridden by a two-thirds vote of both Houses, are 
doctrines not derivable from the light of natural religion ; 
and as to revealed religion, no one, at the present day, is 
likely to seek and find in the divine oracles a rule in favor 
of a single Chamber or of an hereditary nobility. The true 
doctrine has been well ex;pressed thus: **' The command of 
God does not appear as a ground of law, but only raises 
the legal duty towards the lawful government into a 
religious duty." 

Sec. 164. Undoubtedly the ruling spirits of society in 
forming a government have often claimed to act under 
divine guidance, and this claim has been believed in, not 
only by the mass of the community, but often by the 
rulers themselves ; and further, it is this belief that has 
given them their power ; but in such cases it has been the 
will of the rulers that has really organized the State. 
The organization of the State was the same whether the 
rulers who created it had or had not a revelation from 
above. Some of those who have most confidently asserted 
the divine origin of a State which they liked would be the 
first to deny the inspiration of Numa or Joe Smith. 

Sec. 165. Second. That might is right. The objection 
felt to this proposition rests on the ambiguity of the word 
"right." If by "right" is meant what is morally right, 
or in accordance with justice, then the proposition is 
false. If, on the other hand, it is meant that a man's 



70 NATURE AND SOURCES OF LAW 

legal rights depend upon the power of the. State to protect 
them, the expression is well enough, and jet, even in this 
latter sense, it is in danger of being misunderstood. This 
might which creates the State is not the might exercised 
by its organs; it is the might of the rulers who have 
created and uphold it. 

Sec. 166. Third. That the State is founded on con- 
tract. If bj *V contract" anything more is meant than 
the recognition of a state of fact by present opinion, it 
can hardly nowadays be necessary to labor on the refuta- 
tion of such a notion. The theory of the original social 
contract has been the lay figure set up by recent writers 
on political subjects only that they might have the satis- 
faction of knocking it over. Austin's laborious demoli- 
tion of it has done the work, if at wearisome length, yet 
effectually and once for all. For us who are considering 
not what fancies may be dreamed in order to tabulate the 
facts in accordance with a preconceived system, but what 
the facts really were and are, it is enough to say that no 
one of the defenders of the theory of the original social 
contract pretends that there ever, in truth, was such a 
contract. 

Sec. 167. Indeed, since Kant's time, few have been 
willing to put forth the notion of an original social con- 
tract in an undisguised form, and its adherents have 
clothed it in the garb which Kant gave it. He defined 
the original social contract ^* as properly only an outward 
mode of representing the idea by which the rightfulness 
of the process of organizing the Constitution may be made 
conceivable." The phrase is not clear, but the line of his 
reasoning seems to be this : *^ The organization of the 
State was rightful." "I deny it." "I will make you 



THE STATE 71 

understand it. I saj that the ancestors of the present 
members of every organized political society made a 
contract with each other by which ea^h released certain 
rights and created the present organization of the State : 
that being so, you must admit, must you not, that the 
organization of the State was rightful 7 " ^^ Perhaps so, 
if what you say as to the original contract is true, but is 
it true 7 " *^ No, it is not in the least true, but I have told 
it to you in order that you might conceive the rightful- 
ness of the organization of the State." Austin certainly 
has a better excuse for his roughness than he sometimes 
has when he attacks ^^ the conceit of an original covenant 
which never was made anywhere, but which is the neces- 
sary basis of political government and society." 

Sec. 168. Perhaps what Kant means is that no organi- 
zation of a political society can be regarded as good if 
not such as it may reasonably be supposed the original 
members of society would have agreed with each other 
to make, had they been so asked, or, in other words, that 
the test for the goodness of an organization of society is its 
conformity with such a contract concerning it as it may 
be assumed the original members of the society would 
have made, had they made any. If this be his meaning, 
his expression of it is not felicitous. He cannot mean to 
say that no organized political body, no State, can exist 
unless it is one which its members, as wise men, would 
have contracted to create, and it would seem, therefore, 
that his meaning must be that all forms of government are 
pernicious which are not such as would originally have 
been entered into by wise men, and this does appear to 
be what he means. ^^This [the original social contract], 
however," he says, ^* is but a mere idea of the reason ; 



72 NATURE AND SOURCES OF LAW 

possessing, nevertheless, an indubitable (practical) reality 
in this respect, that it obliges every legislator to enact 
his laws in such a manner as they might have originated 
in the united will of the people." This may or may not 
be the duty of a legislator, but there seems no need of 
invoking the fiction of an original compact to enforce it. 
It would be simpler to say (and quite as true) that the 
organization of a State is bad, for which its present 
members cannot be imagined as entering into a contract. 

Sbo. 169. Sovereignty. Much has been said and written 
about sovereignty. I do not deny the interest of the topic, 
nor, from some points of view, its importance ; but from 
the point of view of Law and Jurisprudence, I think its 
importance has been exaggerated. 

Seo. 170. Putting aside the cases where a number of 
people habituaUy subject themselves to one man simply 
as an individual, there are two forms of political organi- 
zation. Fir%t. All political power is formally collected 
into the hands of one man, considered as King or Chief, 
determined by artificial rules of succession, a man clothed 
with aper«(ma, like what is called in the Common Law a 
corporation sole. Second. All political powers are given 
to a body of men organized in a particular way. In the 
first case, there is a sovereign and subjects ; in the second, 
a commonwealth and citizens. 

Sec. 171. Of the second type were the Greek cities and 
are most of the political organizations which have been 
created in modern times, but in many of the countries of 
Europe, the first was the condition of things which existed, 
or, in the opinion of the person calling himself Lord or King, 
existed, — the Prince of the ^^ Leviathan " is the ideal of such 



THE STATE 73 

a ruler; and we find in so-called limited monarchies a 
nomenclature continuing which is derived from the first 
condition of things, although in truth the political organi- 
zations now have the second shape. Thus, in the Kingdom 
of Great Britain and Ireland, the King is not, and does 
not believe himself to be, the sole holder of political power; 
yet he is styled the Sovereign ; the Army and Navy are 
called His Army and Navy. So in international matters, 
treaties between nations profess to be made between His 
Catholic Majesty and His Britannic Majesty. 

Sec. 172. But this, though a popular use, is not the 
scientific use of the term "sovereign." Austin "with 
great concision," as Sir Henry Maine says, defines "sov- 
ereign " thus: " If a determinate human superior, not in a 
habit of obedience to a like superior, receive habitual 
obedience from the bulk of a given society, that determi- 
nate superior is sovereign in that society, and the society 
(including the superior) is a society political and inde- 
pendent. To that determinate superior, the other mem- 
bers of the society are subject ; or on that determinate 
superior, the other members of the society are dependent. 
The position of its other members towards that determi- 
nate superior is a state of subjection, or a state of depend- 
ence. The mutual relation which subsists between that 
superior and them, may be styled the relation of sovereign 
and subject, or the relation of sovereignty and subjec- 
tion."^ And he goes on to point out that it is only in an 
absolute monarchy that the sovereignty is vested in one 
person, and that in aU others, be they called limited 
monarchies, oligarchies, aristocracies, or democracies, the 
sovereignty is held by a number of persons. 

1 1 Jar. (4Ui ed.) 226, 227. 



74 NATURE AND SOURCES OF LAW 

Sbg. 173^ But Austin fails to bring into prominence 
the fact that whenever the power is not yested in one 
person, but is held hj a number of persons, that number are 
always combined for action in accordance with artificial 
rules, and will have the obedience of the community only 
when they act in accordance with those rules. Parlia- 
ment, for instance, is said by Austin to be the Sovereign 
of England ; but suppose King, Lords, and Commons 
should meet in one chamber and vote together, an order 
passed by them would not be obeyed by the English people. 

Sec. 174. And when political power is vested in a 
number of persons, not only may their mode of action be 
limited, but the objects to which their action can be 
directed may also be limited. Certain matters may be ex- 
cluded from those upon which they can issue commands 
that will be obeyed. 

Sbc. 175. This is seen most clearly in federal govern- 
ments. Austin is of the opinion that in the United States 
^^ the sovereignty of each of the states, and also of the 
larger state arising from the federal union, resides in the 
states' governments, as forming one {aggregate body: mean- 
ing by state's government, not its ordinary legislature, but 
the body of its citizens which appoints its ordinary legisla- 
ture, and which, the union apart, is properly sovereign 
therein." ^ But the powers of the United States — that is, 
of all the States' governments ^^ as forming an aggregate 
body " over the individual citizens of a particular State — 
are very limited in character; they are defined by the 
Constitution, and commands by such aggregate body on 
matters outside of the Constitution would not be obeyed 
by the individual citizens. 

1 1 Jar. (4th ed.) 268. 



THE STATE 75 

Sec. 176. Austin attempts to surmount this difficulty 
with the aid of the Fifth Article of the United States Con- 
stitution, which provides for amendments to be effected by 
a ratification by three-fourths of the States. But this 
hardly solves the difficulty. Suppose Congress recommends 
to the States the passage of an amendment to the Constitu- 
tion authorizing an income tax to be levied without regard 
to population, and suppose this is ratified by a majority, 
but not by three-fourths, of the States, and Congress there- 
upon passes an Act imposing such a tax. The Act would 
not be obeyed. 

Sbo. 177. Who, then, would be sovereign in the United 
States? The States as an aggregate body 7 But the ma- 
jority of them cannot on this point enforce their will. Can 
we say that the dissenting minority of the States are the 
Sovereign of the United States? They have certainly had 
their way upon the supposed occasion. They have com- 
manded that the law by which an income tax shall be ap- 
portioned according to population shall not be changed, and 
their commands will be obeyed ; yet, surely, this minority 
cannot be called Sovereign ; except as an obstacle to amend- 
ing the Constitution, it is powerless. 

Sec. 178. Take an even stronger instance : The power 
of amending the Constitution of the United States is limited 
by the exception that ^^ No State, without its consent, shall 
be deprived of its equal suffrage in the Senate." Suppose 
all the States except Utah have agreed that Utah shall have 
only one senator, such agreement would have no effect, 
and yet that hardly makes the State of Utah the Sovereign 
of the United States. 

Sbc. 179. It may be said that if all the other States were 
unanimous in the opinion that Utah should have only one 



76 NATURE AND SOURCES OF LAW 

senator, the j would force the result, and it is possible that 
if the States continue with very different populations, the 
majority in number of the States may be opposed by an 
overwhelming majority of the population, and in that case 
the Constitutional safeguard to secure the position of the 
smaller states in the Senate may give way ; but that will 
be a revolution, a change of sovereign. 

Sec. 180. The truth is that the ideal or fictitious entity, 
the State, can manifest itself only through organs, and 
these organs may be so limited that there are certain acts 
they cannot perform, and therefore there may be no one 
sovereign in Austin's sense, with complete powers. Such 
is the case in the United States of America.^ 

Sec. 181. An independent State is a legal unit, but to 
divide the members of a State into rulers and ruled, and 
call the former sovereign and the latter subjects, furnishes 
no aid to the understanding of the Law of the State. To 
determine who are the real rulers of a political society is 
well-nigh an impossible task, — for Jurisprudence a well- 
nigh insoluble problem. To estimate, even approximately, 
the power that a certain statesman or demagogue has or 
had in a political society is a problem whose elements are 
too conflicting and too obscure for human judgment. 

Sec. 182. To attempt to draw a precise line within any 
political society between sovereign and subjects, is to in- 
troduce a needless difficulty into Jurisprudence. The 
idea of the State is fundamental in Jurisprudence; but 
having postulated the State, we can turn at once to see what 

1 The essay on Sovereignty by Professor Bliss of the Uniyersity of 
Missouri, published in 1885, clearly expounds this view. Unfortunately, 
the unsatisfactory character of the discussion on the nature of Law with 
which the Essay opens, repels students from reading further. 



THE STATE 77 

are its organs, legislative, judicial, and administrative, and 
to consider the rules in accordance with which they act. 
Austin's method would be to attempt to discover the sover- 
eign from the society, and then to refer the organs of gov- 
ernment to the sovereign, but this intermediate step, which 
it is very difficult to take rightly, is superfluous. The 
organs of government can be as directly referred to the 
State as they can be to the Sovereign. 

Sec. 183. The real rulers of a political society are un- 
discoverable. They are the persons who dominate over 
the wills of their fellows. In every political society we 
find the machinery of government, king or president, 
parliament or assembly, judge or chancellor. We have 
to postulate one ideal entity to which to attach this ma- 
chinery, but why insist on interposing another entity, that 
of a sovereign? Nothing seems gained by it, and to intro- 
duce it is to place at the threshold of Jurisprudence a very 
difficult, a purely academic, and an irrelevant question. 

Seso. 184. Legal RighU of the State. Legal rights have 
been defined as the rights correlative to the duties which 
the State will enforce, either on its own motion, or on the 
motion of individuals; the former are the rights of the 
State, the latter are the rights of the individuals. But it 
has been denied by some that the State can have any legal 
rights against any of its members. 

Sec. 185. The expression of the idea that a State has 
no rights against its members cannot be traced, that I am 
aware of, farther back than Austin. Omitting some of his 
amplifications, his doctrine is this: A sovereign govern- 
ment has no legal rights against its own subjects. Every 
legal right is the creature of a positive law ; and it answers 



78 NATURE AND SOURCES OF LAW 

to a relative duty imposed by that positive law and incum- 
bent on a person or persons other than the person or 
persons in whom the right resides. To every legal right, 
there are therefore three parties : The sovereign govern- 
ment which sets the positive law, and which through the 
positive law confers the legal right, and imposes the rel- 
ative duty; the person or persons on whom the right is 
conferred; the person or persons on whom the duty is 
imposed, or to whom the positive law is set or directed. 
... A sovereign government cannot acquire rights 
through laws set by itself to its own subjects. A man is 
no more able to confer a right on himself, than he is able 
to impose on himself a law or a duty. Every party bearing 
a right has necessarily acquired the right through the 
might or power of another ; that is to say, through a law 
and a duty laid by that party on a further and distinct 
party. Consequently, if a sovereign government had legal 
rights against its own subjects, those rights were the 
creatures of positive laws set to its own subjects by a third 
person or body. And, as every positive law is laid by a 
sovereign government on a person or persons in a state of 
subjection to itself, that third person or body were sov- 
ereign in that community whose own sovereign government 
bore the legal rights ; that is to say, the community were 
subject to its own sovereign, and were also subject to a 
sovereign conferring rights upon its own. Which is im- 
possible and absurd.^ 

Sec. 186. But I do not go along with Austin. There 
are some objects desired by individuals which the State 
will protect, and some which it will not protect. It is an 
interest of mine, an object of my desire, that my neighbor 

1 1 Jar. (4th ed.) 201, 292. 



THE STATE 79 

does not drive across my land. That is an interest which 
the State will protect ; I have a legal right. It is an in- 
terest of mine, an object of my desire, to drive across my 
neighbor's land. This interest of mine the State will not 
protect ; I have no legal right to drive over my neighbor's 
land. So with the interests of the State. It is for the 
interest of the State that robbery should be prevented. 
It protects this interest by issuing a command and impos- 
ing a duty ; it creates for itself a legal right. It may be 
its interest, an object of its desire, that the citizens of the 
State should not have dirty hands, that they should wash 
their hands at least once a day ; but if it does not enforce 
this interest by imposing a duty, then it has no legal right 
to the diurnal ablution. 

Sec. 187. There is, of course, this difference between the 
State and the individual : The State can create legal rights, 
the individual cannot. There are innumerable interests 
of the State, conditions in the life of its citizens, which, if 
they existed, would be greatly to the advantage of the 
State ; but the State does not protect these interests by 
imposing duties, because to do so would injuriously affect 
greater interests. It is desirable that people should wash 
their hands ; the State would be better and happier if they 
did, and it may wish that they did ; but it does not en- 
force this, its interest, because its enforcement would 
mean an amount of domestic espionage which would be 
a greater injury to the State than the unwashed hands. 
Yet the State might, if it would, enforce this interest. 

Sec. 188. But the distinction between all those inter- 
ests, on the one hand, which the State in fact protects, 
through its judicial and administrative organs, whether 
at its own instance or at the instance of individuals, and 



80 NATURE AND SOURCES OF LAW 

all those interests, on the other hand, which it does not 
in fact so protect, either at its own instance or at the 
instance of individuals, although it might do so if it 
would, is important and desirable to make, and the name 
which analogy suggests and usage has given for the power 
to invoke such protection for the former is *4egal right." 
Certain interests of Watkins will, on his motion, be pro- 
tected bj the State, and, if the question arises which of 
his interests the State will protect, it will be determined 
by the courts of the State according to rules which form 
the Law of the State, and the interests which the Law 
says are to be protected are the objects of Watkins's legal 
rights. So certain interests of the State will, on the 
motion of the State, through its officers, be protected by 
the State, and, if the question arises what interests of the 
State the State will protect, the question will be deter- 
mined by the courts of the State according to its Law, 
and interests which the Law says will be protected are the 
objects of the legal rights of the State. 

Sbc. 189. And this nomenclature is not only adapted 
to the true theory of human relations, but it is suited to 
any practical view of affairs. What we want for the con- 
duct of life is to know what are the acts and forbearances 
which the State protects, and what are the acts and for- 
bearances which it compels ; in other words, what are 
legal rights and duties? At whose instance these acts 
and forbearances are protected and enforced, though 
important, is yet of secondary importance. 

Sec. 190. Or the matter may be put in this way : Every 
State has judicial organs whose function is, by aid of cer- 
tain rules called the Law, to determine what interests are 
now entitled to be protected, and what acts and forbear- 



THE STATE 81 

ances the State will now, on its own motion or on the 
motion of individuals, enforce. If an ofiBcer of the State, 
on its behalf, demands the performance of a certain act, 
for instance, that a woman who has worn a high hat at the 
theatre shall be hanged, and the Law does not provide for 
her execution, then the State has now no right to have her 
hanged. It is true that the State may prescribe a different 
rule for the judges; that is, it may cause the Law to be 
changed and the court will sentence the woman to be 
hanged, but the State has then a legal right which it did 
not have before. The State has an indefinite power to 
create legal rights for itself, but the only legal rights which 
the State has at any moment are those interests which are 
then protected by the Law, — that is, by the rules in ac- 
cordance with which the judicial organs of the State are 
then acting. 



CHAPTER IV 

THE LAW 

Sec. 191. The Law of the State or of any organized 
body of men is composed of the rules which the courts, 
that is, the judicial organs of that body, lay down for the 
determination of legal rights and duties. The difference 
in this matter between contending schools of Jurisprudence 
arises largely from not distinguishing between the Law and 
the Sources of the Law. On the one hand, to affirm the 
existence of nicht posititfisches Recht^ that is, of Law which 
the courts do not follow, is declared to be an absurdity ; 
and on the other hand, it is declared to be an absurdity to 
say that the Law of a great nation means the opinions of 
half-a-dozen old gentlemen, some of them, donceivably, of 
very limited intelligence. The truth is, each party is 
looking at but one side of the shield. If those half-a-dozen 
old gentlemen form the highest judicial tribunal of a coun- 
try, then no rule or principle which they refuse to follow 
is Law in that country. However desirable, for instance, 
it may be that a man should be obliged to make gifts 
which he has promised to make, yet if the courts of a 
country will not compel him to keep his promise, it is not 
the Law of that country that promises to make a gift are 
binding. On the other hand, those six men seek the rules 
which they follow not in their own whims, but they derive 
them from sources often of the most general and perma- 
nent character, to which they are directed, by the organ- 



THE LAW 83 

ized body to which they belong, to apply themselves. I 
believe the definition of Law that I have given to be cor- 
rect ; but let us consider some other definitions of the 
Law which have prevailed and which still prevail. 

Sec. 192. Of the many definitions of the Law which 
have been given at various times and places, some are 
absolutely meaningless, and in others a spark of truth is 
distorted by a mist of rhetoric. But there are three theo- 
ries which have commended themselves to accurate think- 
ers, which have had and which still have great acceptance, 
and which deserve examination. In all of them it is 
denied that the courts are the real authors of the Law, 
and it is contended that they are merely the mouthpieces 
which give it expression. 

Sec. 193. The fitzt of these theories is that Law is 
made up of the commands of the sovereign. This is Aus- 
tin's view. " Every positive law," he says, " obtaining in 
any community, is a creature of the Sovereign or State ; 
having been established immediately by the monarch or su- 
preme body, as exercising legislative or judicial functions ; 
or having been established immediately by a subject indi- 
vidual or body, as exercising rights or powers of direct or 
judicial legislation, which the monarch or supreme body 
has expressly or tacitly conferred." ^ 

Sbo. 194. In a sense, this is true; the State can restrain 
its courts from following this or that rule, but it often 
leaves them free to follow what they think right ; and it 
is certainly a forced expression to say that one commands 
things to be done, because he has power (which he does 
not exercise) to forbid their being done. 

Sec. 195. Mr. A. B., who wants a house, employs an 

1 2 Jar. (4th ed.) 660, 661. 



84 NATURE AND SOURCES OF LAW 

architect, Mr. T. Z., to build it for him. Mr. T. Z. puts 
up a staircase in a certain way ; in such a case, nine times 
out of ten, he puts it up in that way, because he always 
puts up staircases in that way, or because the books on 
construction say they ought to be so put up, or because 
his professional brethren put up their staircases in that 
fashion, or because he thinks to put it up so would be 
good building, or in good taste, or because it costs him 
less trouble than to put it up in some other way ; he sel- 
dom thinks whether Mr. A. B. would like it in that way 
or not ; and probably Mr. A. B. never thinks whether it 
could have been put up in any other fashion. Here it cer- 
tainly seems strained to speak, as Austin would do, of the 
staircase as being the ^^ creature " of Mr. A. B. ; and yet 
Mr. A. B. need not have had his staircase put up in that 
way, and indeed need never have had any staircase or any 
house at all. 

Sec. 196. When an agent, servant, or official does acts 
as to which he has received no express orders from his 
principal, he may aim, or may be expected to aim, direeUy 
at the satisfaction of the principal, or he may not. Take 
an instance of the first, — a cook, in roasting meat or boil- 
ii^g eggs, has, or at any rate the ideal cook is expected to 
have, directly in view the wishes and tastes of her master. 
On the other hand, when a great painter is employed to 
cover a church wall with a picture, he is not expected to 
keep constantly in mind what will please the wardens and 
vestry ; they are not to be in all his thoughts ; if they are 
men of ordinary sense, they will not wish to be ; he is to 
seek his inspiration elsewhere, and the picture when done 
is not the ^' creature " of the wardens and vestry ; whereas, 
if the painter had adopted an opposite course, and had 



THE LAW 85 

bent his whole energies to divining what he thought would 
please them best, he would have been their ^^tool," and 
the picture might not unfairly be described as their crea- 
ture. 

Sbc. 197. Now it is clear into which of these classes a 
judge falls. Where he has not received direct commands 
from the State, he does not consider, he is not expected to 
consider, direeUy what would please the State; his 
thoughts are directed to the question — What have other 
judges held ? What does Ulpian or Lord Coke say about 
the matter ? What decision does elegantia Juris or sound 
morals require ? 

Sec. 198. It is often said by hedonistic moralists that, 
while happiness is the end of human life, it is best attained 
by not aiming directly at it ; so it may be the end of a 
court, as of any other organ of a body, to carry out the 
wishes of that body, but it best reaches that object by not 
directly considering those wishes. 

Sec. 199. Austin's statement that the Law is entirely 
made up of commands directly or indirectly imposed by 
the State is correct, therefore, only on the theory that 
everything which the State does not forbid its judges to 
do, and which they in fact do, the State commands, al- 
though the judges are not animated by a direct desire to 
carry out the State's wishes, but by entirely different 
ones. 

Sec. 200. In this connection, the meaning of ^' Law," 
when preceded by the indefinite, is to be distinguished 
from that which it bears when preceded by the definite, 
article. Austin, indeed, defines the Law as being the 
aggregate of the rules established by political superiors;^ 

1 1 Jar. (4th ed.) 89. 



86 NATURE AND SOURCES OF LAW 

and Bentham says, ^^Law^ or the Law^ taken indefinitely, 
is an abstract and collective term ; which, when it means 
anything, can mean neither more nor less than the sum total 
of a number of individual laws taken together." ^ But this 
is not, I think, the ordinary meaning given to '* the Law." 
A law ordinarily means a statute passed by the legislature 
of a State. " The Law " is the whole system of rules ap- 
plied by the courts. The resemblance of the terms sug- 
gests the inference that the body of rules applied by the 
courts is composed wholly of the commands of the State, 
but to erect this suggestion into a demonstration, and say, 
— The system administered by the courts is '* the Law," 
'^ the Law " consists of nothing but an aggregate of single 
laws, and all single laws are commands of the State — is 
not justifiable. 

Seo. 201. It is to Sir Henry Maine that we owe the 
distinct pointing out that Austin's theory ^^ is founded on 
a mere artifice of speech, and that it assumes courts of 
justice to act in a way and from motives of which they 
are quite unconscious. • • . Let it be understood that 
it is quite possible to make the theory fit in with such 
cases, but the process is a mere straining of language. 
It is carried on by taking words and propositions alto- 
gether out of the sphere of the ideas habitually associated 
with them." a 

Sec. 202. Austin's theory was a natural reaction against 
the views which he found in possession of the field. Law 
had been defined as ^' the art of what is good and equita- 
ble"; ^Hhat which reason in such sort defines to be good 
that it must be done"; *Hhe abstract expression of the 
general will existing in and for itself"; ^^the organic 

1 1 Benth. Works, 148. « Maine, Eariy Hist, of Inst, 304, 366. 



THE LAW 87 

whole of the external conditions of the intellectual life." 
If Austin went too far in considering the Law as always 
proceeding from the State, he conferred a great benefit on 
Jurisprudence by bringing out clearly that the Law is at 
the mercy of the State. 

Sec. 203. The Becand theory on the nature of Law is 
that the courts, in deciding cases, are, in truth, applying 
what has previously existed in the common consciousness 
of the people. Savigny is the ablest expounder of this 
theory. At the beginning of the System des heutigen 
rdmUchen ReehUt he has set it forth thus : ^^ It is in the 
common consciousness of the people that the positive law 
lives, and hence we have to call it Volksreeht. ... It is 
the VoVcBgeist^ living and working in all the individuals in 
common, which begets the positive law, so that for the 
consciousness of each individual there is, not by chance 
but necessarily, one and the same law. • . . The form 
in which the Law lives in the common consciousness of 
the people, is not that of abstract rule, but the living 
intuition of the institute of the Law in its organic connec- 
tion. . • • When I say that the exercise of the Volk9reeht 
in single cases must be considered as a means to become 
acquainted with it, an indirect acquaintance must be 
understood, necessary for those who look at it from the 
outside, without being themselves members of the commu- 
nity in which the VolJcBreeht has arisen and leads its con- 
tinuous life. For the members of the community, no such 
inference from single cases of exercise is necessary, since 
their knowledge of it is direct and based on intuition." ^ 

Sec. 204. Savigny is careful to discriminate between 
the common consciousness of the people and custom: 

1 1 Say. Heat. rttm. Recht, $ 7, pp. 14, 16 ; § 12, p. 88. 



88 NATURE AND SOURCES OF, LAW 

^^ The foundation of the Law,'* he says, ** has its existence, 
its reality, in the common consciousness of the people. 
This existence is invisible. How can we become acquainted 
with it ? We become acquainted with it as it manifests 
itself in external acts, as it appears in practice, manners, 
and custom. By the uniformity of a continuous and con^ 
tinning mode of action, we recognize that the belief of 
the people is its common root, and not mere chance. 
Thus, custom is the sign of positive law, not its founda- 
tion." ^ 

Sbo. 205. Savigny is confronted by a difficulty of the 
same kind as confronted Austin. The great bulk of the 
Law as it exists in any community is unknown to its rul- 
ers, and it is only by aid of the doctrine that what the 
sovereign permits he commands, that the Law can be con- 
sidered as emanating from him ; but equally, the great 
bulk of the Law is unknown to the people ; how, then, 
can it be the product of their ^' common consciousness " ? 
How can it be that of which they ^* feel the necessity as 
kw"? 

Seo. 206. Take a simple instance, one out of thousands. 
By the law of Massachusetts, a contract by letter is not 
complete until the answer of acceptance is received.^ By 
the law of New York, it is complete when the answer is 
mailed. Is the common consciousness of the people of 
Massachusetts different on this point from that of the peo- 
ple of New York ? Do the people of Massachusetts feel 
the necessity of one thing as law, and the people of New 
York feel the necessity of the precise opposite ? In truth, 

1 1 Hent rdm. Becht, § 12, p. 86. 

* This oaed to be the Law in Masaaohofletts. I am not so snre that it 
Is now. 



THE LAW 89 

not one in a hundred of the people of either State has the 
dimmest notion on the matter. If one of them has a notion, 
it is as likely as not to be contrary to the law of his State. 

Seo. 207. Savigny meets the difficulty thus : '^ The 
Law, originally tfie common property of the collected 
people, in consequence of the ramifying relations of real 
life, is so developed in its details that it can no more be 
mastered by the people generally. Then a separate class 
of legal experts is formed which, itself an element of the 
people, represents the community in this domain of 
thought. In the special consciousness of this class, the 
Law is only a continuation and peculiar development of 
the Volkweeht. The last leads, henceforth, a double life. 
In its fundamental principles it continues to live in the 
common consciousness of the people ; the exact determina- 
tion and the application to details is the special calling of 
the class of Jurisconsults.'* ^ 

Sec. 208. But the notion that the opinions of the 
jurisconsults are the developed opinions of the people is 
groundless. In the countries of the English Common 
Law, where the judges are the jurists whose opinions go 
to make up the Law, there would be less absurdity in con- 
sidering them as expressing the opinions of the people; but 
on the Continent of Europe, in Germany for instance, it is 
difficult to think of the unofficial and undeterminate class 
of jurists, past and present, from whose writings so great 
a part of the Law has been derived, as expressing the 
opinions of the people. In their reasonings, it is not the 
opinions of the people of their respective countries, Prussia, 
or Schwartzenburg-Sonderhausen, which guide their judg- 
ment. They may bow to the authority of statutes, but in 
1 1 Hent r5m. Recht, § 14, p. 46. 



90 NATURE AND SOURCES OF LAW 

the domain of Law which lies outside of statute, the 
notions on Law, if they exist and are discoverable, which 
they are mostly not, of the persons among whom they live, 
are the last things which they take into account. What 
they look to are the opinions of foreign lawyers, of Papin- 
ian, of Accursius, of Cujacius, or at the elegarUia JuriSf or 
at "juristic necessity." 

Seo. 209. The jurists set forth the opinions of the 
people no more and no less than any other specially edu- 
cated or trained class in a community sets forth the 
opinions of that community, each in its own sphere. They 
in no other way set forth the Volksgeist in the domain of 
Law than educated physicians set forth the Volksgeist in the 
matter of medicine. It might be very desirable that the 
conceptions of the Volksgeist should be those of the most 
skilful of the community, but however desirable this might 
be, it is not the case. The Volksgeist carries a piece of 
sulphur in its waistcoat pocket to keep off rheumatism, 
and thinks that butchers cannot sit on juries. 

Seo. 210. Not only is popular opinion apart from pro- 
fessional opinion in Law as in other matters, but it has 
been at times positively hostile. Those who hold that 
jurists are the mouthpieces of the popular convictions in 
matters of law have never been able to deal satisfactorily 
with the reception of the Roman Law in Germany, for 
that Law was brought in not only without the wishes, but 
against the wishes, of the great mass of the people.^ 

Sec. 211. A third theory of the Law remains to consider. 
That theory is to this effect. The rules followed by the 
courts in deciding questions are not the expression of the 
State's commands, nor are they the expression of the com- 

1 See Appendix IIL 



THE LAW 91 

mon consciousness of the people, but, although what the 
judges rule is the Law, it is putting the cart before 
the horse to say that the Law is what the judges rule. 
The Law, indeed, is identical with the rules laid down 
by the judges, but those rules are laid down by the judges 
because they are the Law, they are not the Law because 
they are laid down by the judges, or, as the late Mr. James 
C. Carter puts it, the judges are the discoverers, not the 
creators, of the Law. And this is the way that judges 
themselves are apt to speak of their functions. 

Seo. 212. This theory concedes that the rules laid down 
by the judges correctly state the Law, but it denies that 
it is Law because they state it. Before considering the 
denial, let us look a moment at the concession. It is a 
proposition with which I think most Common-Law lawyers 
would agree. But we ought to be sure that our ideas are 
not colored by the theories or practice of the particular 
system of law with which we are familiar. In the Com- 
mon Law, it is now generally recognized that the judges 
have had a main part in erecting the Law; that, as it now 
stands, it is largely based on the opinions of past genera- 
tions of judges ; but in the Civil Law, as we shall see 
hereafter, this has been true to a very limited extent. In 
other words, judicial precedents have been the chief mate- 
rial for building up the Common Law, but this has been 
far otherwise in the systems of the Continent of Europe. 
But granting all that is said by the Continental writers on 
the lack of influence of judicial precedents in their countries 
to be true, yet, although a past decision may not be a 
source of Law, a present decision is certainly an expression 
of what the Law now is. The courts of France to-day may, 
on the question whether a blank indorsement of a bill of 



92 NATURE AND SOURCES OF LAW 

exchange passes title, care little or nothing for the opinions 
formerly expressed by French judges on the point, but, 
nevertheless, the opinion of those courts to-day upon the 
question is the expression of the present Law of France, 
for it is in accordance with such opinion that the State 
will compel the inhabitants of France to regulate their 
conduct. To say that any doctrine which the courts of a 
country refuse to adopt is Law in that country, is to set 
up the idol of nicht jMsitivisches Reeht; and, therefore, it 
is true, in the Civil as well as in the Common Law, that 
the rules laid down by the courts of a country state the 
present Law correctly. 

Sag. 218. The great gain in its fundamental conceptions 
which Jurisprudence made during the last century was 
the recognition of the truth that the Law of a State or 
other organized body is not an ideal, but something which 
actually exists. It is not that which is in accordance 
with religion, or nature, or morality ; it is not that which 
ought to be, but that which is. To fix this definitely in 
the Jurisprudence of the Common Law, is the feat that 
Austin accomplished. He may have been wrong in treat- 
ing the Law of the State as being the command of the 
sovereign, but he was right in teaching that the rules for 
conduct laid down by the persons acting as judicial organs 
of the State, are the Law of the State, and that no rules 
not so laid down are the Law of the State. 

Sec. 214. The Germans have been singularly inappre- 
ciative of Bentham and Austin, and, as so often happens, 
the arrival at a sound result has been gpreatly hampered 
by nomenclature. Ethics is, in Continental thought, 
divided into two parts, one dealing with matters which 
can be enforced by external compulsion, and the other 



THE LAW 93 

with those which cannot. The former of these is called 
BechUlehre, To use the language of Kant — ^' Moral 
philosophy (JHetaphymk der SitterC) is divisible into two 
parts : (1) the metaphysical principles of Jurisprudence 
(BeehJUlehre)^ and (2) the metaphysical principles of 
ethics (^TugendUhre).'*^ "Jurisprudence has for its 
subject-matter the aggregate of all the laws which it is 
posHble to promulgate by external legislation/' "All 
duties are either duties of justice (Jteehb^fiiekt) or duties 
of virtue (Tugendpflich£). The former are such as admit 
of external legislation; the latter are those for which 
such legislation is not possible." ^ Beehtalehre^ that is, deals 
not only with the rules which the State has actually im- 
posed upon conduct, but also with all conduct which can 
be potentially BvJ^ected to such rules, and this has tended 
to obscure the distinction between the rules which have 
actually been laid down from those which might have been 
laid down. But of late years, the Germans, in their own 
way, have been coming round to Austin's view ; and 
now the abler ones are abjuring all ^^nichb positivischeB 
Eechtr^ 

Seo. 215. To come, then, to the question whether the 
judges discover preexisting Law, or whether the body of 
rules that they lay down is not the expression of preexist- 
ing Law, but the Law itself. Let us take a concrete 
instance: On many matters which have come in question 
in various jurisdictions, there is no doctrine received 
semper J ubique^ et ab omnibus. For instance, Henry Pitt 

^ I owe the reference to these paasagee of Kant to an article by John 
W. Salmon, Esq., in 11 Law Quarterly ReWew, 121, on the Law of Nature. 
See also Willonghby, Nature of the State, 113, note. 

* See Bergbohm, Jurieprudenz et Bechtsphiiosophie, poMim, 



94 NATURE AND SOURCES OF LAW 

has built a reservoir on his land, and has filled it with 
water ; and, without any negligence on his part, either in 
the care or construction of his reservoir, it bursts, and the 
water, pouring forth, floods and damages the land of Pitt's 
neighbor, Thomas Underbill. Has Underbill a right to 
recover compensation from Pitt ? In England, in the 
leading case of Btflands v. Fletcher^ it was held that he 
could recover, and this decision has been followed in some 
of the United States — for instance, in Massachusetts; but 
in others, as, I believe, in New Jersey, the contrary is 
held. 

Sbo. 216. Now, suppose that Pitt's reservoir is in one 
of the newer States, say Utah, and suppose, further, that 
the question has never arisen there before ; that there is 
no statute, no decision, no custom on the subject ; the 
court has to decide the case somehow ; suppose it should 
follow Mylands v. Fletcher and should rule that in such 
cases the party injured can recover. The State, then, 
through its judicial organ, backed by the executive power 
of the State, would be recognizing the rights of persons 
injured by such accidents, and, therefore, the doctrine of 
Bylands v. Fletcher would be undoubtedly the present 
Law in Utah. 

Sec. 217. Suppose, again, that a similar state of facts 
arises in the adjoining State of Nevada, and that there 
al^o the question is presented for the first time, and that 
there is no statute, decision, or custom on the point ; the 
Nevada court has to decide the case somehow ; suppose 
it should decline to follow Mylands v. Fletcher^ and should 
rule that in such cases the party injured is without remedy. 
Here the State of Nevada would refuse to recognize any 
right in the injured party and, therefore, it would un- 



THE LAW 95 

questionably be the present Law in Nevada that a person 
injured by such an accident would have no right to com- 
pensation. 

Sec. 218. Let us now assume that the conditions and 
habits of life are the same in these two adjoining States ; 
that being so, these contradictory doctrines cannot both 
conform to an ideal rule of Law, and let us, therefore, as- 
sume that an all- wise and all-good intelligence, consider- 
ing the question, would think that one of these doctrines 
was right and the other wrong, according to the true 
standard of morality, whatever that may be. It matters 
not, for the purposes of the discussion, which of the two 
doctrines it is, but let us suppose that the intelligence 
aforesaid would approve Mylands v. Fletcher; that is, it 
would think the Law as established in Nevada by the 
decision of its court did not conform to the eternal prin- 
ciples of right. 

Sec. 219. The fact that the ideal theory of Law disap- 
proved the Law as established in Nevada would not afiFect 
the present existence of that Law. However wrong intel- 
lectually or morally it might be, it would be the Law of 
that State to-day. But what was the Law in Nevada a 
week before a rule for decision of such questions was 
adopted by the courts of that State ? Three views seem 
possible : firaty that the Law was then ideally right, and 
contrary to the rule now declared and practised on ; see- 
andy that the Law was then the same as is now declared 
and practised ; thirds that there was then no Law on the 
matter. 

Sec. 220. The first theory seems untenable on any 
notion of discovery. A discoverer is a discoverer of that 
which is, — not of that which is not. The result of such 



96 NATURE AND SOURCES OF LAW 

a theory would be that when Underbill received the injury 
and brought his suit, he had an interest which would be 
protected by the State, and that it now turns out that he 
did not have it, — a contradiction in terms. 

Sec. 221. We have thus to choose between the theory 
that the Law was at that time what it now is, and the 
theory that there was then no law at all on the subject. 
The latter is certainly the view of reason and of common 
sense alike. There was, at the time in question, ex 
hypothen^ no statute, no precedent, no custom on the sub- 
ject; of the inhabitants of the State not one out of a 
hundred had an opinion on the matter or had ever thought 
of it ; of the few, if any, to whom the question had ever 
occurred, the opinions were, as likely as not, conflicting. 
To say that on this subject there was really Law existing 
in Nevada, seems only to show how strong a root legal 
fictions can strike into our mental processes. 

Sec. 222. When the element of long time is introduced, 
the absurdity of the view of Law preexistent to its decla- 
ration is obvious. What was the Law in the time of 
Richard Coeur de Lion on the liability of a telegraph 
company to the persons to whom a message was sent ? It 
may be said that though the Law can preexist its declara- 
tion, it is conceded that the Law with regard to a natural 
force cannot exist before the discovery of the force. Let 
us take, then, a transaction which might have occurred in 
the eleventh century : A sale of chattels, a sending to the 
vendee, his insolvency, and an order by the vendor to the 
carrier not to deliver. What was the Law on stoppage 
in transitu in the time of William the Conqueror ? 

Sec. 223. The difficulty of believing in preexisting Law 
is still greater when there is a change in the decision of 



THE LAW 97 

the courts. In Massachusetts it was held in 1849, by 
the Supreme Judicial Court, that if a man hired a horse in 
Boston on a Sunday to drive to Nahant, and drove instead 
to Nantasket, the keeper of the livery stable had no right to 
sue him in trover for the conversion of the horse. But in 
1871 this decision was overruled, and the right was given 
to the stable-keeper. Now, did stable-keepers have such 
rights, say, in 1845 ? If they did, then the court in 1849 
did not discover the Law. If they did not, then the court 
in 1871 did not discover the Law. 

Sbo. 224. And this brings us to the reason why courts 
and jurists have so struggled to maintain the preexistence 
of the Law, why the common run of writers speak of the 
judges as merely stating the Law, and why Mr. Carter, in 
an advance towards the truth, says of the judges that they 
are discoverers of the Law. That reason is the unwilling- 
ness to recognize the fact that the courts, with the consent 
of the State, have been constantly in the practice of ap- 
plying in the decision of controversies, rules which were 
not in existence and were, therefore, not knowable by the 
parties when the causes of controversy occurred. It is 
the unwillingness to face the certain fact that courts are 
constantly making ex pont facto Law.^ 

Seo. 225. The unwillingness is natural, particularly on 
the part of the courts, who do not desire to call attention 
to the fact that they are exercising a power which bears 
so unpopular a name, but it is not reasonable. Practically 
in its application to actual affairs, for most of the laity, 
the Law, except for a few crude notions of the equity in- 

1 Technically the term ^^ezpoBt fado Law'' is confined with ns to 
Btatates creating crimes or punishments. I use the term here in its broader 
sense of retroactive Law. 



r 



/ 
• 



98 NATURE AND SOURCES OF LAW 

volved in some of its general principles, is all ex post facto. 
When a man marries, or enters into a partnership, or buys 
a piece of land, or engages in any other transaction, he 
has the vaguest possible idea of the Law governing the 
situation, and with our complicated system of Jurispru- 
dence, it is impossible it should be otherwise. If he 
delayed to make a contract or do an act until he under- 
stood exactly all the legal consequences it involved, the 
contract would never be made or the act done. Now the 
Law of which a man has no knowledge is the same to him 
as if it did not exist. 

Seo. 226. Again, the function of a judge is not mainly 
to declare the Law, but to maintain the peace by deciding 
controversies. Suppose a question comes up which has 
never been decided, — and such questions are more fre- 
quent than persons not lawyers generally suppose, — the 
judge must decide the case somehow; he will properly 
wish to decide it not on whim, but on principle, and he 
lays down some rule which meets acceptance with the 
courts, and future cases are decided in the same way. 
That rule is the Law, and yet the rights and duties of the 
parties were not known and were not knowable by them. 
That is the way parties are treated and have to be treated 
by the courts; it is solemn juggling to say that the Law, 
undiscovered and undiscoverable, and which is finally de- 
termined in opposite ways in two communities separated 
only by an artificial boundary, has existed in both com- 
munities from all eternity. I shaU recur to this matter 
when we come to consider the topic of Judicial Precedents. 

Seo. 227. It may be said that there are reasons, based 
on the highest welfare of the human race, why the Law 
should be so or otherwise, and that it is one of the functions 



THE LAW 99 

and duties of a judge to investigate those reasons ; that 
he is an investigator as much as, in his sphere, was Sir 
Isaac Newton ; that he may make mistakes, just as Newton 
did ; and yet that truth is largely discovered by his means. 
But the difference between the judges and Sir Isaac is that 
a mistake by Sir Isaac in calculating the orbit of the 
earth would not send it spinning round the sun with an 
increased velocity ; his answer to the problem would be 
simply wrong ; while if the judges, in investigating the 
reasons on which the Law should be based, come to a 
wrong result, and give forth a rule which is discordant 
with the eternal verities, it is none the less Law. The 
planet can safely neglect Sir Isaac Newton, but the in- 
habitants thereof have got to obey the assumed pernicious 
and immoral rules which the courts are laying down, or 
they will be handed over to the sheriff. 

Seo. 228. It is possible to state the facts in the terms 
of discovery by use of a device familiar enough in the 
Common Law. We may say that the rule has always ex- 
isted, and that the opinions and consequent action of the 
judges are only conclusive evidence that such is the rule ; 
but this is merely a form of words to hide the truth. Con- 
clusive evidence is not evidence at all ; it is something 
which takes the place of evidence and of the thing to be 
proved, as well. When we say that men are conclusively 
presumed to know the Criminal Law, we mean that men 
are to be punished for certain acts without regard to 
whether they know them to be against the Law or not ; 
when we say that the registration of a deed is conclusive 
evidence against all the world, we mean that all the world 
are bound by a registered deed whether they know or not 
of its existence. 



100 NATURE AND SOURCES OF LAW 

Sbg. 229. Rules of conduct laid down and applied bj 
the courts of a country are coterminous with the Law of 
that country, and as the first change, so does the latter 
along with them. Bishop Hoadly has said : ^^ Whoever 
hath an absolute authority to interpret any written or 
spoken laws, it is He who is truly the Law -Giver to all 
intents and purposes, and not the person who first wrote 
or spoke them ;" a fartiarij whoever hath an absolute au- 
thority not only to interpret the Law, but to say what the 
Law is, is truly the Law-Giver. Mitia nan mvltiplicanda. 
There seems to be nothing gained by seeking to discover 
the sources, purposes, and relations of a mysterious entity 
called " The Law,'' and then to say this Law is exactly 
expressed in the rules by which the courts decide cases. 
It is better to consider directly the sources, purposes, and 
relations of the rules themselves, and to call the rules 
"The Law." 

Seo. 230. There is a feeling that makes one hesitate to 
accept the theory that the rules followed by the courts 
constitute the Law, in that it seems to be approaching the 
Law from the clinical or therapeutic side ; that it is as if 
one were to define medicine as the science of the rules by 
which physicians diagnose and treat diseases; but the 
difference lies in this, that the physicians have not received 
from the ruler of the world any commission to decide 
what diseases are, to kill or to cure according to their 
opinion whether a sickness is mortal; whereas, this is 
exactly what the judges do with regard to the cases 
brought before them. If the judges of a country decide 
that it is Law that a man whose reservoir bursts must pay 
the damage, Law it is ; but all the doctors in town may 
declare that a man has the yellow fever, and yet he may 



THE LAW 101 

have only the German measles. If when a board. -o:(«phy- 
sicians pronounced that Titius had the colic, ip90* facto 
Titius did have the colic, then I conceive the suggested 
definition of medicine would be unobjectionable. . ..- 

Sbc. 231. To sum up. The State exists for the pto- 
tection and forwarding of human interests, mainly throug^h ^ 
the medium of rights and duties. If every member of 
the State knew perfectly his own rights and duties, and the\ 
rights and duties of everybody else, the State would 
need no judicial organs; administrative organs would 
suffice. But there is no such universal knowledge. To 
determine, in actual life, what are the rights and duties of 
the State and of its citizens, the State needs and estab- 
lishes judicial organs, the judges. To determine rights 
and duties, the judges settle what facts exist, and also lay 
down rules according to which they deduce legal conse- 
quences from facts. These rules are the Law. 

Sec. 232. There are one or two other matters connected 
with the Law which remain for consideration : Firstj The 
rules which constitute the Law of a community are distin- 
guished from the other rules by which members of the 
community govern their conduct by the fact that the for- 
mer are the rules laid down by the courts of the commu- 
nity in accordance with which they make their decrees. 
Very often these rules are overridden in the mind of a mem- 
ber of a community by other rules, of supposed morality, 
for instance, or of fashion, as where a man aids a runaway 
slave, or fights a duel. And again, when the conduct pre- 
scribed by the rules of Law is followed, the fact that those 
rules are laid down by the courts is not always, nor gener- 
ally, the chief or predominant motive in the minds of 



102 /•., NATURE AND SOURCES OF LAW 



thos&.^o follow them. The motive that restrains Titius 
froqi* killing Balbus, or deters John Doe from taking Rich- 
ard^ K6e's handkerchief out of his pocket, is not primarily 
thaji'the one fears being hanged or the other fears being 
setTt to jail ; it is some other reason, religious, moral, 
•SQiftial, sentimental, orsBsthetic, which moves him. There 

.^ is generally no occasion for the courts to apply their rules, 
.but the fact that the courts will apply them, if necessary, 

V makes them the Law. 

. Sec. 233. Further, when persons do not voluntarily act 
in accordance with the rules laid down by the courts, but are 
compelled thereto by force, the force is often applied, not 
in consequence of a judicial order, but by the person 
directly interested in having the rules followed or by 
some administrative officer not acting under judicial 
authority, — as when Stiles expels Batkins as a trespasser 
from his domestic castle, or policeman X. arrests Watkins 
for being drunk and disorderly. But in all such cases, the 
rules are Law because, in the ultimate resort, the judges 
will apply them in protecting Stiles and the policeman 
against any violent acts or any prosecution in the courts 
by the intrusive Batkins or the vagabond Watkins. 

Sec. 234. Second. Suppose, however, that the bulk of 
the community habitually act contrary to certain rules 
laid down by the courts, — will you call such rules Law? 
The question is the same when asked with regard to 
those rules which the judges lay down in compliance with 
statutes passed by the legislative organ of the State, as in 
regard to those which they frame of their own motion. 
Suppose the Legislature enacts a statute which is so 
odious to the inhabitants of the State that the bulk of the 
community disobey it from the start, and yet the judges 



, THE LAW 103 

declare that it has been duly and constitutionally enacted. 
In countries where statutes can be abrogated by disuse 
(a matter which we shall afterwards consider), the courts 
may, after a space of time, declare that such a statute is 
no longer to be considered binding, but we are here con- 
sidering a case where the courts lay down a rule in ac- 
cordance with the statute. Is such a rule Law ? I submit 
that it is most in accordance with usage and most conven- 
ient in practice to consider the declaration of the courts 
following the action of the Legislature as being "the 
Law/' If there is a statute recognized by the courts 
forbidding the sale of wine, and yet wine is sold publicly 
and with impunity, it seems best to say, not that the Law 
allows the sale of wine, but that the Law against the sale 
of wine is disregarded. And it must be the same as I 
have said, whether the declaration of the court is founded 
on a statute or is derived from any of the other sources 
of the Law.^ 

Sec. 235. In certain of these cases, an unnecessary dif- 
ficulty arises from misunderstanding what the Law is. 
Let us take such a case as I have suggested: Suppose 
that in one of the United States there is a statute provid- 
ing that whoever sells wine shall be punished by fine or 
imprisonment, and suppose, further, that the statute is so 
hated that juries will not convict. This statute, being 
followed by the courts, is an element of the Law in the 
State, but it is not the whole of the Law. It is also 
doubtless Law in the State that no one shall be punished 
for crime except after being found guilty by a jury. The 
whole Law must be taken together. We say the Law is 

^ See, however, what is said on the limits of jadicial power, §§ 206 et 
9eq.fPost. 



104 NATURE AND SOURCES OF LAW 

that a man selling wine shall be punished, but in truth the 
Law is, that a man selling wine and convicted thereof by a 
jury shall be punished. If there has been no conviction 
by a jury, one of the elements which the Law declares 
necessary for the infliction of the punishment does not 
exist. In old statutes this essential element is often ex- 
pressed, e.g. St. 14 Eliz. c. 3: "If any person or persons 
. . . the offenders therein, being convict according to the 
laws • . • shall be imprisoned," etc. 

Sec. 236. Third. To say that the Law of an organized 
body is composed of the rules acted an by its courts would 
be too broad. It is only the rules which the courts lay 
down of their own motion, or which they follow as being 
prescribed for them by the body of which they are the 
courts, that, according to the ordinary usage of language, 
can be called the Law of that body. 

Seo. 237. Take, for instance, the courts of a political 
society. They have constantly, in the causes brought 
before them, to apply general rules of conduct which are 
yet not laws. Thus, A. and B. may enter into an agree- 
ment by which A., for a consideration, expressly or im- 
pliedly promises to obey the commands of B. on certain 
matters ; those commands may take the form of general 
rules; and the existence and validity of such a rule may 
be brought in question in a court of law. In most cases 
where the legal relation of master and servant is established 
there are such general rules. Gladys, who has hired 
Norah for a housemaid, dismisses her for misconduct; 
Norah sues for her wages ; the alleged misconduct is the 
not wearing of a cap; the existence of a rule requiring the 
wearing of a cap, its legality and scope, may all have to 
be determined by the court, yet Gladys's household ordi- 
nance is not the Law of the land. 



THE LAW 105 

Sbc. 238. It may be said that such rules are made by 
agreement of the parties, and are given by them to the 
court as rules by which, in controversies between them, it 
is to decide. But such rules do not always spring from 
contract. In many communities, the relations between 
master and slave have formed an important topic in the 
Law; and at the present day, in all countries, a father has 
authority to make rules on many subjects for his children, 
e.g. that they are to live in such a place, or are to go to 
bed at a certain hour. But these rules are no part of the 
Law, as commonly understood, though they can conceiv- 
ably come before a court, and the court must pass in its 
decision upon their existence and validity. 

Seo. 239. A class of these rules forming no part of the 
Law of a country, and yet daily discussed and applied by 
its courts, are the by-laws of corporations. It would 
seem as if Austin ^ counted the by-laws of corporations as 
part of the Law of the land existing as Law by the express 
or tacit authority of the supreme legislature. He makes 
them a part of the Law in the same manner in which he 
brings judicial precedents under that head. He considers 
both by-laws and judicial precedents to be commands of 
the sovereign, by virtue of the doctrine that what the 
sovereign permits he commands. 

Sbc. 240. But there seems to be no distinction between 
the valid regulations of a corporation and the valid regu- 
lations of a paterfamilias. I should suppose Austin 
would hardly make these last part of the Law of the land. 
To do so would amount to saying that all commands not 
directed to particular acts which the State allows to be 
made and enforced by any reward or punishment are part 

1 2 Jur. c. 28. 



106 NATURE AND SOURCES OF LAW 

of the Law of the land, — a nomenclature, to say the least, 
very inconvenient, and a wide departore from usage, both 
popular and professional. 

Seo. 241. It should be borne in mind that rules, al- 
though not the Law of the State, may yet be the Law of 
another organized body. Thus, the by-laws of a private 
corporation may be part of the Law of the organized body 
which that corporation is, and yet not be part of the Law 
of the land. So the rules by which Titius governs his 
children are no part of the Law of Titius^s State, but 
they may all the same be part of the Law of Titius's 
family. 

Seo. 242. Such organizations may be the creatures of 
the State, as insurance or other business corporations ; or 
they may be independent of the State, as the Roman 
Catholic Church ; or even hostile to it, as a Nihilist club; 
but that is immaterial on the question whether such an 
organization has its own Law. It is true that an interest 
which a member of a club, for instance, may have that an- 
other member of the club itself should do or forbear, may be 
protected by the State by virtue of some rule which the 
courts of the State follow, — say, with regard to con- 
tracts generally, — or may be denied protection by the 
State by virtue of some rule which the courts of the State 
follow, — say with regard to gambling ; but apart from its 
relations with the State, if any organized body of men has 
persons or bodies appointed to decide questions, then that 
body has judges or courts, and if those judges or courts in 
their determinations follow general rules, then the body 
has Law and the members of the body may have rights 
under that Law. Thus, the Roman Catholic Church has 
courts and a Law, and by virtue of its power in inflicting 



THE LAW 107 

excommunication and other Bpiritual censares, it gives 
rights to itself and its members.^ 

Seo. 243. Fourth. One question more presents itself : 
Are all the general rules for conduct made by the admin- 
istrative organs of a political (or other) organization to 
be called ^^ laws " ? Or is there a class of such rules to 
which the name of ^^ laws " is to be denied ? 

Seo. 244. We must bear in mind the distinction to 
which I have referred between a law and the Law, as those 
terms are generally employed. A law is a formal general 
command of the State or other organized body ; the Law is 
the body of rules which the courts of that body apply in 
deciding cases. So there are really two questions: First, 
is a general order of an administrative organ of an organ- 
ized body a law of that body ? Secondly, is such an order 
a source of the Law of that body ? 

Sec. 245. Such an order certainly seems to be a com- 
mand of the organized body and, therefore, a law of that 
body. To take cases like those which Mr. Frederic 
Harrison suggests as showing that there are rules of the 
State which are not laws; a regulation by the proper 
authority (or, indeed, by the supreme legislature) that 
all recruits for the army shall be five feet six inches high, 
or a direction in the infantry tactics that the goose step 
shall be twenty-eight inches, or an order by the comman- 
dant of a fort that a sentry shall always be posted before 
a certain cellar. Are such regulations, directions, and 
orders laws? They are unquestionably commands with 
sanctions; they are of a general and permanent character; 
they are formally issued by a person empowered by the 
State to issue them and they are issued on behalf of and 

1 See Appendix IV, The Church of England. 



108 NATURE AND SOURCES OF LAW 

for the supposed advantage of the State. They seem to 
be as much laws of the State as statutes passed by its 
legislative organ. 

Sec. 246. Are these regulations and orders sources of 
the Law ? It is hard to imagine any of them which may 
not be brought before a court for application and whose 
ultimate sanction is not that the courts will apply them. 
Let us take one of Mr. Harrison's instances, — a regulation 
from the British War Office that no recruit shall be en- 
listed who is not five feet six inches high. Suppose a 
recruiting officer musters in a man who is five feet five 
inches only in height, and pays him the King's shilling ; 
afterwards the officer is sued by the Government for being 
short in his accounts ; among other items he claims to be 
allowed the shilling paid to the undersized recruit. The 
court has to consider and apply this regulation and, what- 
ever its effect may be, that effect will be given to it by 
the court exactly as effect will be given to a statute pro- 
viding that murderers shall be hanged, or that last wills 
must have two witnesses. 

Sbo. 247. It is, therefore, on the best consideration I 
can give the subject, impossible to say that any general 
rule of conduct laid down by an administrative organ of a 
political (or other) organized body, and applied, if neces- 
B&Ty^ by its. courts, is not a source of Law. 



CHAPTER V 

THE C0UBT8 

Seo. 248. The Law of an organized body, political or 
other, being the rules laid down by the judicial depart- 
ment of that body, it is now necessary to consider eourts 
or judges ; I use the terms as synonymous. 

Seo. 249. It is, of course, not necessary that a judge 
be called by that name ; it is the functions which he exer- 
cises, and not the name by which he is called, that mark 
his essential character. Thus, the Lord High Chancellor 
of England is a judge. And, further, persons having 
judicial functions may have also functions which are 
not judicial. Thus, the Lord Chancellor, again, is not 
only a judge, he presides over the House of Lords and dis- 
penses much of the ecclesiastical patronage of the Crown. 
In some primitive communities, the legislative, judicial, 
and administrative powers are united in the same persons 
or in a single individual. 

Sec. 250. A judge of an organized body is a man ap- 
pointed by that body to determine duties and the corre- 
sponding rights upon the application of persons claiming 
those rights. It is the fact that such application must be 
made to him, which distinguishes a judge from an admin- 
istrative officer. 

Seo. 251. The essence of a judge's office is that he shall 
be impartial, that he is to sit apart, is not to interfere vol- 

109 



110 NATURE AND SOURCES OF LAW 

untarUy in affairs, is not to act 9tia aponte, but is to deter- 
mine cases which are presented to him. To use the phrase 
of the Ecclesiastical courts, the office of the judge must 
be promoted by some one. 

Sec. 252. A judge's usual function is to determine con- 
troversies between parties, of which parties the State, or 
other organized body, whose judge he is, may be one. 
Even if in non-contentious proceedings a judge cannot be 
said to determine an actual controversy, application must 
be made to him by some one interested in having a matter 
determined, in order to fix rights and prevent a contro- 
versy arising. Thus, in granting probate of an undisputed 
last will, which is an extreme case of a non-contentious 
proceeding, the judge is determining a question, — viz. 
whether a certain paper is the last will of a deceased per- 
son, — in order to prevent controversies between people 
interested, or claiming to be interested, in the succession 
to the estate of the deceased ; and he grants probate, not 
of his own motion, but on the application of the executor. 
If no application is made to him, the testamentary paper 
remains without probate ; so also in voluntary insolvency 
proceedings. 

Sec. 253. A judge is to determine rights. He may be, 
and often is, given authority to enforce his decision, but 
this is not necessary. The function of determination is the 
essential element in the judicial position. The power to 
enforce the decision is accidental. 

Sec. 254. Sometimes, even, the decision of the court of 
an organized body other than the State is enforced, not by 
that body, but by the State. Thus, in other days, after a 
Church court had adjudged a person to be a heretic, and 
^^foro Secular i relinquendum esse decreverit , , . ac Sancta 



THE COURTS 111 

Mater Ecelena nan habet tdterius quidfaeiat in prcBmiirii "; 
it was the State which issued the writ De hcBretieo eambu- 
rendo ; ^ and in the United States, at the present day, the 
judgment of a Church court has often to be enforced by 
an action of ejectment or of tort in the civil courts. 

Sec. 255. Even when the organized body in question 
is the State, the function of some of its courts may be only 
that of determination. Thus, a court of probate decides 
whether a person has died testate or intestate, and thereby 
fixes the rights of persons claiming to be legatees or next 
of kin ; but it may have no machinery for enforcing these 
rights. 

Sec. 256. Although power to enforce his decrees is 
not necessary to constitute a man a judge, yet in most 
cases there is a means somewhere of enforcing them. 
Take the case just suggested : The judge of a probate 
court may have no power to enforce his decrees, yet if one 
who is named executor in a testamentary paper obtains 
probate of it, he can enforce his claim as executor in the 
Common Law courts, which he could not do in the absence 
of probate. 

Sec. 257. There may sometimes be a difference of 
opinion between the courts of the same political or other 
organization. They may apply different rules. What, in 
that case, is the Law of such organization ? It is the rule 
generally followed. If the courts generally of a country 
follow certain rules, those rules do not cease to be the 
Law because of a sporadic departure from them by a par- 
ticular judge. A judge once decided in Massachusetts 
that payment on Sunday was no discharge of a debt, but 
that has never been the Law of Massachusetts. 

1 1 Gib. Cod. (2d ed.) 888, note. 



112 NATURE AND SOURCES OF LAW 

Sbo. 258. A permanent difference of opinion between 
courts of the same organized body is usually prevented by 
the fact that, in most organizations having several courts 
or judges, there is a supreme appellate tribunal, to which 
all the other courts are subordinate. When such is the 
case, the rules followed by the supreme tribunal are the 
Law of the organization. It is true, as we shall see later, 
when we come to consider the subject of Judicial Prece- 
dents, that on the modern theory, if not in the practice, of 
the Germans, decisions of appellate courts are not sources 
of Law to the lower courts ; but although, in determining 
what is the Law now^ that is, what are the rules which the 
courts will now apply, a court of first instance may not 
now be bound by a past decision of an appellate court, as 
a precedent, yet even assuming this to be so, still upon a 
question as to what was the Law of the organization at 
that past time, it would seem as if the rule which was 
followed by the court that then had the final power of 
determination was the Law at that time. 

Sec. 259. Sometimes, however, perhaps (1) there may 
be coordinate courts of one political body, with the same 
powers, and no common superior; or (2) there may be 
independent courts for different matters, each of which is 
supreme in its sphere, as is probably the case with the 
House of Lords and the Judicial Committee of the Privy 
Council in England; or, (3) what is a very common 
arrangement in the United States, cases involving an 
amount above a certain sum may be carried to an appel- 
late court, while those involving a less amount cannot be. 

Sbo. 260. (1) In the case where there are two or more 
coordinate courts of the same organization, having no 
common superior, and yet having the same territorial 



THE COURTS 113 

jurisdiction, the same jurisdiction of persons and causes, 
and the same powers, and these courts habitually follow 
different rules on any point, I do not see how we can avoid 
saying that the organization has no Law on that point. 
It is to be observed that the existence of such an anarchic 
condition of things is vastly improbable. 

Sec. 261. (2) Let us now consider the case where dif- 
ferent classes of action are brought, or different remedies 
applied, in courts above which there is no common appel- 
late tribunal. For instance, suppose a suit against Edwin 
by one who has supplied goods to Angelina, and also a 
libel for divorce by Angelina against Edwin. On the 
same undisputed facts, the court of Common Law might, 
as a matter of Law, rule that Edwin and Angelina were 
never married, while the Divorce Court might rule that 
they were. So again, when a seaman, on the one hand, 
files a libel for his wages against his ship in the Admiralty, 
or, on the other, sues the ship's owners for them in a court 
of Common Law, the Admiralty and the Common Law 
might follow different rules. In these cases, we could not 
say that on such facts the Law was that a marriage had or 
had not taken place, or that a sailor had or had not earned 
his wages. We should have to say that on such facts the 
Law was that a man could not be made liable for the debts 
of a woman, but that he could obtain a divorce from her 
as his wife ; and that on such other facts, the Law was 
that a sailor could sue a ship, but not the owners, or vice 
versa. 

Sbo. 262. It should be observed that, in the case of two 
courts having different machineries, the rules which one 
follows may be said to be the Law of the land, though 
they are different from those followed by the other. 



114 NATURE AND SOURCES OF LAW 

Thus, it would not be incorrect to say that it was the Law 
of England that, if land was devised to A. and his heirs, 
in trust for B. and his heirs, A. could not turn B. out of 
possession of the land, although A. could, before the in- 
troduction of equitable pleas, turn B. out by an action of 
ejectment at Common Law, for as Equity would enjoin A. 
from bringing ejectment, the rules on this subject in the 
courts of Equity might be said to be the Law of the 
land. 

Sbo. 268. (8) Let us now take the case suggested 
where the right of appeal is limited by the amount in- 
volved. In countries where the doctrines of the English 
Common Law prevail, there is no difficulty. The rules 
laid down by the higher court in those cases which, being 
above the money limit, have been brought up by appeal, 
would be binding on the lower courts, and would be fol- 
lowed by them, as well in those cases in which the amount 
involved was too small to allow an appeal, as in those 
cases which could be carried up. But in Germany, ap- 
parently, it would be open to a court of first instance, if 
its judge disagreed with the opinion of the appellate court, 
to continue to decide finally cases below the limit of appeal 
in one and the same way, although his decisions in cases 
above the limit were being constantly reversed. 

Sec. 264. Suppose, to take a particular instance, that in 
a country where the German doctrine prevails, all the courts 
of first instance persist in deciding that the holder of an 
overdue coupon cut from a bond is not entitled to interest 
upon it, while the supreme tribunal rules that such holder 
is entitled to interest ; and suppose, also, that no appeal is 
allowed when the subject-matter in dispute is of a value less 
than twenty -five marks. Hans has a coupon for twenty 



THE COURTS 115 

marks which has been a year overdue, and Fritz has a 
coupon due at the same time, but which is for the sum of 
thirty marks. It seems absurd to say that the Law in that 
country is that Hans cannot get interest on his coupon and 
that Fritz can on his ; and even more absurd to say that 
if Hans has two coupons of twenty marks each, or, if he 
waits until a second coupon on the same bond has become 
overdue, and then sues on both, he can recover interest on 
both. But yet, such is the fact. The holder of a single 
coupon will not be helped by the State to the interest; he 
has nothing which it wiU protect ; he has no right to the 
interest. As to it, he stands as in any other matter 
where, though he may have a moral right, he has no legal 
right. It is absurd, but the absurdity lies in a theory of 
judicial organization and judicial duty which allows an in- 
ferior court to disregard a rule for decision which a higher 
court has adopted. 

Sec. 265. This is not the place to discuss the topic of 
conflict between the Federal and State courts in the 
United States, for that conflict is not between courts of 
the same political org^ization, but between courts 
which, although they may have the same territorial juris- 
diction, are yet the courts of different political organiza- 
tions. The matter will be discussed in the chapter on 
Judicial Precedents in the United States. 

Sec. 266. The LimiU of Judicial Power. Thus far we 
have seen that the Law is made up of the rules for decision 
which the courts lay down ; that all such rules are Law; 
that rules for conduct which the courts do not apply are 
not Law; that the fact that the courts apply rules is what 
makes them Law; that there is no mysterious entity 



116 NATURE AND SOURCES OF LAW 

^^ The Law " apart from these rules ; and that the judges 
are rather the creators than the discoverers of the Law. 

Sec. 267. Is the power of the judges, then, absolute ? 
Can the comparatively few individuals who fill judicial 
position in the State, for instance, lay down rules for the 
government of human intercourse at their bare pleasure 
or whim ? Not so ; the judges are but organs of the State ; 
they have only such power as the organization of the 
State gives them ; and what that organization is, is de- 
termined by the wills of the real rulers of the State. 

Sec. 268. Who are the rulers of a State, is a question 
of fact and not of form. In a nominal autocracy, the real 
rulers may be a number of court favorites or the priests of 
a religion ; and in a democracy, the real ruler may be a 
demagogue or political boss. 

Sec. 269. It is conceivable that a body of judges may 
be the ruling wills of a community, and then they hold 
their powers by virtue of dominating other wills, but this, 
except in a very primitive community, can hardly ever be 
the case. The half-a-dozen elderly men sitting on a plat- 
form behind a green or red cloth, with very probably not 
commanding wills or powerful physique, can exercise their 
functions only within those limits which the real rulers of 
the State allow for the exercise; for the State and the 
court as an organ thereof are the product of the wills of 
those rulers. 

Sec. 270. Who is to determine whether the judges are 
acting within those limits ? In all the less important 
matters, the rulers intrust the determination of this 
question to the judges themselves; thus the judges are 
allowed to say what are the details of the organization of 
a State and the distribution of its powers among its organs; 



THE COURTS 117 

but, on the most vital matters, the rulers themselves de- 
termine what the organization of the body is and within 
what limits its organs shall work ; and the acts and decla- 
rations of persons, being its organs, which are inconsistent 
with the very nature of the organization, are not acts and 
declarations of the State — are not its Law. 

Sec. 271. How can it be told whether a rule laid down 
by a court is to be deemed not the Law, either because 
such rule is inconsistent with the organization of the State 
as established by its rulers, or because it is beyond the 
limits of the power of the court as fixed by those rulers ? 
The principal evidence that declarations of judges are 
inconsistent with the organization of the State, or beyond 
the limits fixed by it for their action, is the opinions of the 
members of the community to that effect. To determine 
whether such opinions are so strong and universal that 
they must be taken for the judgment of the rulers of the 
State, or whether the declarations, though much disre- 
garded, are still to be deemed Law,^ there seems to be no 
general definite rule, applicable to all cases. 

Sec. 272. It should be observed that the unexpressed, 
and, in formal shape, inexpressible, opinion of the rulers 
of society lies behind the Law none the less in those coun- 
tries which possess written constitutions than in those 
which do not. The organization and powers of the ordi- 
nary legislative bodies may be indeed defined in a consti- 
tution, but whether there was power in any one to bring 
into effect the constitution, the constitution itself cannot 
determine, any more than a book can prove its own 
inspiration, or a man lift himself up by his boots. For 
instance. What are the geographical limits for which the 
1 See §§ 2S4 et seq., ante. 



118 NATURE AND SOURCES OF LAW 

constitutioii is to be in force ? Who are to vote upon it, 
— men, women, or ohildren ? Can paupers, slaves, aliens, 
vote ? By what collections of individuals, such as towns 
or boroughs, must representatives to frame a constitution 
be chosen? These are questions that the rulers of the 
State must determine ; their decision is a prerequisite for 
the constitution coming into existence. The elephant 
may rest on the tortoise, but in the last result we have to 
go back to the wills of those who rule the society. 

Sbo. 278. The power of the rulers of the State or other 
community in reference to its judicial organs or courts is 
exercised in a twofold way, — first, by creating them, and 
secondly, in laying down limits for their action, or, in 
other words, indicating the sources from which they are 
to derive the rules which make up the Law. From what 
%ouree% does the State or other community direct its judges 
to obtain the Law? These sources are defined for the 
most part in a very vague and general way, but one rule 
is clear and precise. The State requires that the acts of 
its legislative organ shall bind the courts, and so far as 
they go, shall be paramount to all other sources. This 
may be said to be a necessary consequence from the very 
conception of an organized community of men. 

Sec. 274. The other sources from which courts may 
draw their general rules are fourfold, — judicial precedents, 
opinions of experts, customs, and principles of morality 
(using morality as including public policy). Whether 
there is any precedent, expert opinion, custom, or principle 
from which a rule can be drawn, and whether a rule shall 
be drawn accordingly, are questions which, in most com- 
munities, are left to the courts themselves, and yet there 
are probably in every community limits within or beyond 



THE COURTS 119 

which courts may, or, on the other hand, cannot, seek for 
rules from the sources mentioned, although the limits are 
not precisely defined. Take, for instance, a country where 
the English Common Law has prevailed. If a court in 
such a country should, in matters not governed by statute, 
absolutely refuse to follow any judicial precedents, it is 
not likely that the rulers of the country would recognize 
the doctrine of that court as Law ; or, if a court should 
frame a rule based upon the principle that infanticide was 
not immoral, that rule would not be the Law. 

Seo. 275. Though the commands by the rulers of a 
community as to the limits within which these last four 
classes of sources are to be sought by the courts are indefi- 
nite, while the command that legislative acts must be 
followed by the courts is precise and peremptory, the fact 
is that this latter rule, in its working, is almost as indefi- 
nite as those which are imposed on the courts with refer- 
ence to the other sources ; for, after all, it is only words 
that the legislature utters ; it is for the courts to say what 
those words mean ; that is, it is for them to interpret 
legislative acts ; undoubtedly there are limits upon their 
power of interpretation, but these limits are almost as un- 
defined as those which govern them in their dealing with 
the other sources. 

Seo. 276. And this is the reason why legislative acts, 
statutes, are to be dealt with as sources of Law, and not 
as part of the Law itself, why they are to be coordinated 
with the other sources which I have mentioned. It has 
been sometimes said that the Law is composed of two 
parts, — legislative law and judge-made law, but, in truth, 
all the Law is judge-made law. The shape in which a 
statute is imposed on the community as a guide for con- 



120 NATURE AND SOURCES OF LAW 

duct is that statute as interpreted by the courts. The 
courts put life into the dead words of the statute. To 
quote again from Bishop Hoadly, a sentence which I have 
before given : ^^ Nay, whoever hath an absoltUe authority 
to interpret any written or spoken laws, it is Se who js 
truly the Law Giver to all intents and purposes, and not 
the Person who first wrote and spoke them/'^ I will re- 
turn to this later. 

1 Sennon preached before the King, 1717 (IGth ed.), 12; see { 866, 
posU 



CHAPTER VI 

LAW OF NATIONS 

Sbo. 277. It is possible, perhaps probable, that men 
have lived together in certain modes and fashions, have, in 
other words, lived in society, and yet may not have formed 
an organized body. But the units of such unorganized 
bodies may be themselves organisms, and this has in all 
probability been generally the case. A horde of savages 
who are in the habit of wandering about together, with- 
out king or judge, may be composed of true organisms, 
families, each with its ruler (alike legislator and judge) 
and Law. The horde is made up of the family units, and 
not of the individual human beings who make up the 
family. 

Seo. 278. The consideration of the relations between 
the units of an unorganized collection of units seems to be 
a discussion remote from modern life, but, in truth, such 
relations not only exist to-day, but they are some of the 
most important factors in the life of the world. Such 
relations obtain between modern civilized nations. Each 
nation is an organized unit, but taken together, they do 
not form an organized body. The rules governing the 
relations of such nations between themselves constitute 
what is called the Law of Nations, or International Law. 
Is this really Law ? 

Seo. 279. There are two matters which must be dis- 

121 



122 NATURE AND SOURCES OF LAW 

tinguished. First. On no subject of human interest, 
except theology, has there been so much loose writing and 
nebulous speculation as on International Law. In many 
parts of the vast field which it covers, no questions have 
been positively decided or, at any rate, judicially decided; 
one class, however, and a very important class, of questions 
has frequently come before courts for determination; that 
is, questions arising from the capture of neutral vessels by 
belligerents on the high seas. When a neutral ship is cap- 
tured by a belligerent cruiser, on the alleged ground, for 
instance, that it is carrying goods belonging to a subject 
of the other belligerent nation, or is carrying contraband 
goods, or is attempting to break a blockade, it is carried 
into a port of the belligerent, and is there libelled by the 
captors in the Admiralty. If the Court of Admiralty 
finds that there has been just cause of capture, the vessel 
is condemned ; if there has been no just cause of capture, 
the vessel is released. 

Sbo. 280. Now here the judge of the Admiralty Court 
is not acting as an organ of the nations generally, but as an 
organ of the particular belligerent State. The rules that 
he follows in determining the validity of a capture are the 
Law of that particular State, and he applies them because 
they are the Law of that particular State. The sources 
of that Law may be the customs which prevail among 
civilized nations, but he refers to these, not because such 
nations have commanded him so to do, but because he has 
been authorized so to do by the State of which he is the 
judge. If his State should pass a statute contrary to the 
general customs of civilized nations, the judge would be 
bound to follow it. The enactment of the statute may 
give rise to complaint on the part of neutral states, or 



LAW OF NATIONS 123 

may even be a eoivs belliy but the judge will follow the 
statute. 

Sec. 281. The relations between nations come in ques- 
tion before the courts of a State most frequently in cases 
of captures on the high seas, but other cases sometimes 
present themselves. For instance, the automobile of an 
ambassador runs over a man and kills him. The chauffeur 
is indicted for manslaughter. Can he be tried and con- 
victed? This is a question which the courts of the 
country where the alleged crime has been committed 
must determine, but the rule which the judges follow is 
a part of the Law of that country, not of the country of 
the ambassador, nor of the nations generally. 

Sec. 282. Second. The rights of a man in any coun- 
try, arising from a transaction which has occurred partly 
in one place and partly in another, or between citizens of 
different States, may depend, under the Law of that coun- 
try, upon the difference of locality or citizenship. Suppose 
a contract is made for the carriage of goods. The offer is 
made by a letter written in Paris and is accepted in Madrid; 
the goods are to be carried from Lisbon, in a Liverpool 
ship, to Naples ; one party is domiciled in Stockholm and 
the other in St. Petersburg; a suit is brought on the 
contract in Berlin ; judgment is obtained there ; and an 
action is brought on the judgment in New York, In 
what way and to what extent the Laws of France, Spain, 
Portugal, England, Italy, Sweden, Russia, Germany, and 
New York, respectively, are to be considered, must be 
determined by the New York court. The rules which 
that court follows in considering what effect shall be 
given to these several laws are a part of the Law of New 
York, not of any or all of the other countries. The Laws 



124 NATURE AND SOURCES OF LAW 

of the other countries are simply facts which the court 
has to consider like other facts. Thej are no part of the 
Law of New York. 

Sbo. 288. As it is obviously desirable that the effect to 
be given to differences of locality or citizenship should be 
alike in different countries, it is natural and proper that a 
court, in laying down rules, that is, in establishing the 
Law of its own country on the subject, should pay regard 
to the Law of other countries. And such has been the 
practice of the courts of most civilized nations. There is 
much similarity in the Law of different countries upon 
this subject, and, therefore, while some treatises on the 
subject confine themselves to the Law of a particular 
jurisdiction, there are others which approach the topic 
from the point of view of Comparative Jurisprudence, and 
deal with the doctrines which prevail among civilized 
nations generally. 

Sec. 284. Whichever treatment is adopted, the best 
title for the subject is that which Judge Story domesti- 
cated in English, the Conflict of Laws, the name he gave 
to the book which is his highest claim to reputation as 
a jurist. A nomenclature has, however, arisen for this 
branch of the Law, which, though favored by respectable 
writers, is unfortunate and pernicious, — Private Interna- 
tional Law. I do not always agree with Mr. Holland, 
which makes me the more willing to borrow the excellent 
remarks in his treatise on Jurisprudence : ^ " « Private In- 
ternational Law ' is wholly indefensible. Such a phrase 
would mean, in accordance with that use of the word 
^international,' which, besides being well established in 
ordinary language, is both scientifically convenient and 

1 (lOth ed.) )10. 



LAW OF NATIONS 125 

etymologically correct, * a private species of the body of 
rules which prevail between one nation and another." 
Nothing of the sort is, however, intended ; and the unfor- 
tunate employment of the phrase, as indicating the prin- 
ciples which govern the choice of the system of private law 
applicable to a given class of facts, has led to endless mis- 
conception of the true nature of this department of legal 
science. It has also made it necessary to lengthen the 
description of International Law, properly so called, by 
prefixing to it the otherwise superfluous epithet ^ public' 
It is most important, for the clear understanding of the 
real character of the topic which for the last forty years 
has been misdescribed as ^ Private International Law,' that 
this barbarous compound should be no longer employed." 
It is cause for satisfaction that Mr. Dicey, in the work 
which is likely for long to continue a standard book, has 
returned to the title ^* Conflict of Laws." 

Sbo. 285. Having cleared the ground, we come back 
to the question : Is International Law, so called, really 
Law from the point of view of independent nations? 
Austin denied that International Law had the qualities 
essential to Law and, though this denial has been much 
carped at, it is hard to make out a case against it on any 
sound definition of Law. As we have seen, the rules of 
International Law, as they are laid down by the judges of 
a particular State, are the Law of that State ; but the 
question here is : Are they the Law of the collection of 
civilized nations generally ? They are not the rules laid 
down by international courts, for there are no interna- 
tional courts ; they are not the commands of a common 
superior, for independent States have no common superior ; 
they are not put in execution by joint force, for the civil- 



126 NATURE AND SOURCES OF LAW 

ized nations do not put forth their force jointly to carry 
them into effect. The sanction which makes them opera- 
tive as between nations is not a physical sanction ; it is the 
sanction arising from the opinion of civilized nations that 
the rules are right, and that civilized nations are morally 
bound to obey them. They are, as Austin says, precepts 
of positive morality. 

Sec. 286. On the term " International Law," Mr. 
Brown, in his valuable book on the Austinian Theory of 
Law^ has some interesting, and perhaps prophetic, re- 
marks : '^ As a matter of fact, the term International Law 
is at present too generally adopted to admit of question- 
ing its propriety. But apart from this, the severest accu- 
sation that can be urged against the term is simply that 
it is a trifle previous. Just as in the history of particular 
societies there are periods when the differentiation between 
law and morality is in the process of becoming, rather than 
actually realized, — periods when a something which is to 
become positive law is being slowly differentiated from 
positive morality, — so in relation to the society of nations 
to-day there is a body of rules in which a distinction 
is being established and developed between rules which 
must be obeyed, if certain penalties are not to be incurred, 
and rules which are merely the expression of international 
comity and good-will. Rules of the former class . • • are 
law in becoming — law struggling for existence, struggling 
to make itself good in contradistinction from international 
morality, and, like the customary law of undeveloped 
societies, entitled to be called law in virtue of their like- 
ness to law strictly so called — the Positive Law, which 
is the subject-matter of Jurisprudence." 

i§157. 



LAW OF NATIONS 127 

Sec. 287. Since this was written, the International 
Conference has met ; the establishment of an International 
Court of Arbitration has been discussed, and it seems not 
unlikely that it may be set up. When that is done, the 
nations which unite to establish it will become an organ- 
ized body, which will have the court as an organ. The 
court will lay down and follow general rules. If the 
nations who have united to establish the court unite to 
declare that they will join in carrying out its decrees by 
force, if necessary, then the rules will become Law in the 
strictest sense, and each of the nations parties to the 
establishment of the court will have legal rights and 
legal duties. 



CHAPTER Vn 

JUBIBPBUDENGB 

Sbo. 288. Jurispradence is the science of Law, the 
statement and systematic arrangement of the rules fol- 
lowed by the courts and of the principles involved in 
those rules. There are three kinds of Jurisprudence : 
first, Particular Jurisprudence, or the science of the Law 
of a particular community ; second, Comparative Juris- 
prudence, or the comparison of the Law of two or more 
communities ; third. General Jurisprudence, or the com- 
parison of all the legal systems of the world. 

Sec. 289. Austin says that the appropriate subject of 
Jurisprudence is positive Law ; that, as limited to any 
one system, it is particular or national ; that many prin- 
ciples of Law are common to all systems; and that the 
principles common to maturer systems are the subject of 
General (or Comparative) Jurisprudence, or of the phi- 
losophy of positive Law. Austin, it will be thus seen, 
speaks of Particular Jurisprudence as the science of the 
legal system of a particular country. Professor Holland 
objects to the term '' Particular Jurisprudence " ; he says 
it can only mean an acquaintance with the Law of a 
particular people. It means that, but it means more ; it 
means a scientific knowledge of the Law of a particular 
people. It is desirable to have a special term to express 
this, and this is what ^^ Particular Jurisprudence," as or- 
dinarily, and I think rightly, used, does mean. 

128 



JURISPRUDENCE 129 

Sbo. 290. Indeed, there seems no objection to the usage 
which Professor Holland mentions as springing up in 
France, of referring to the *^ Jurisprudence " of a particu- 
lar Court in the sense of ^^La maniSre dont un tribunal 
Juge habituellemefU telle au telle queitian.^^ Nor is it nec- 
essary that the courts, whose rules form the subject of 
Jurisprudence, should be those of a political community. 
It is right to speak of the Jurisprudence of the Roman 
Catholic Church ; and if the Worshipful Company of 
Bellows Menders has courts with judicial functions, it 
may have a Jurisprudence. 

Sec. 291. Jurisprudence, it is true, is often used in a 
sense which it is impossible to defend. There are certain 
treatises, many of considerable merit, dealing with those 
facts, likely to arise in litigation, with which the members 
of certain professions or trades are or ought to be famil- 
iar; such books are often called treatises on Jurispru- 
dence. Thus, works on Medical Jurisprudence are vade 
mecums for lawyers and doctors, containing a mass of 
useful information on poisons, parturition, etc., but with- 
out any scientific unity, or any pretension to be considered 
"Law** at all. So in France they speak of "Veterinary 
Jurisprudence," and there is no reason why, in like man- 
ner, we should not have "Builders' Jurisprudence," or 
"Jockeys* Jurisprudence." 

Sec. 292. Comparative Jurisprudence has for its object 
the systematic comparison of the Law of two or more 
countries or organizations, for the purpose of discovering 
the elements of agreement and difference. There are 
many bodies of Law of which, at present at any rate, we 
know little, — some in ancient times, as the Assyrian or 
Egyptian ; others of to-day, as that of the Chinese or 



130 NATURE AND SOURCES OP LAW 

Zulus ; but all of them were or are in a state of develop- 
ment so different from that of the systems under which 
we live, that the chief gain to be derived from considering 
them, in connection with the Common or Civil Law, would 
be rather from the light which might be thrown on the 
history of the past, than in expectation of improvement 
or change in the future. 

Sec. 293. But though there may be little practical 
advantage in the pursuit of Comparative Jurisprudence 
beyond the limits of the Common and Civil Law, there is 
plenty of material within those limits. The Law of Eng- 
land, of all of the United States except Louisiana, and of 
many of the English Colonies, including the whole conti- 
nent of Australia, have one common root, yet the growths 
from that common root have been very varied, and the 
comparison of those growths is most instructive. So 
again, the Law of the different States of Continental 
Europe, of Scotland, of Louisiana, of South America, are 
based on the Roman Law, but so diversified by natural 
development and by codes that there is great oppor- 
tunity for fruitful comparison of the systems of all these 
countries with each other and with those of communities 
where the English Common Law has formed the point of 
departure. 

Sec. 294. The natural meaning of General Jurispru- 
dence would seem to be a comparison of €Ul (as distin- 
guished from some) of the legal systems of the world. 
As we know nothing, or next to nothing, of the Law of 
many of the nations and tribes which exist, or have ex- 
isted on the earth, and have only a very superficial 
acquaintance with the Law of many others, it is impos- 
sible, with our present materials, to construct such a sci- 



JURISPRUDENCE 131 

ence of General Jurisprudence, and it is likely long to 
continue impossible. 

Sbo. 295. Another meaning sometimes given to Gen- 
eral Jurisprudence b that it has, for its object, the rules 
of Law which are common to all legal systems. An objec- 
tion exists also to the practicability of the science of 
General Jurisprudence in this sense. Under the first 
definition the product of the science would be extraordi- 
narily bulky; on this second meaning, its product would be 
meagre in the extreme. The list of rules of Law received 
semper^ ubique et ab amnilms from Eamschatka to Patagonia 
is likely to be a short one. 

Sec. 296. General Jurisprudence has sometimes been 
declared to be the science of the neee%%ary principles of 
the Law in all countries. Such a treatment of the subject 
is not likely to meet with much favor at the present day. 
There is no need of denying that the rules which courts 
have laid down have been compelled by a sequence of 
events as fixed as those which prevail in the material 
forces of nature. Such may have been the case. We 
know that language, which seems to be the sport of indi- 
vidual caprice, is in truth subject to rigorous rules which 
have operated controUingly without the conscious knowl- 
edge of those who have in fact obeyed them. But if this 
be so, we as yet know little of the general forces of human 
nature which have compelled the Law to develop as it has. 
Much has of late been done to show how particular insti- 
tutes, like the jury, or particular doctrines, such as that 
of possession, have grown up in this or that country, but 
little, if anything, to show what universal forces of human 
nature have caused the Jurisprudence of the globe to 
be what it is; or, in other words. Jurisprudence, as a 



132 NATURE AND SOURCES OF LAW 

branch of anthropology, is yet in its infancy. A prwri 
theories on the fundamental laws of human existence have 
been common enough, and far enough away from any 
known facts, but General JurisprudencCi as a science based 
on observation, does not yet exist. 

Seo. 297. But, further, we do know enough to render 
it extremely doubtful whether there are any principles of 
Law which are so ingrained in human nature as to be im- 
mutable and necessary. The possibility of General Juris- 
prudence as a science of neeeB$arjf principles rests on a 
theory of the universe which has, in these last days, been 
badly shaken, a theory which supposes a permanence in 
social relations the existence of which is very uncertain. 
As Mr. Buckland well says : ^ — 

^^ The fact that principles of law change Professor Hol- 
land admits by calling Jurisprudence a progressive science. 
This admission is somewhat startling. A writer on the 
Jurisprudence of a single nation might make it readily 
enough. But what is likely to be the fate of a principle 
found in the law of, say, the States which go on develop- 
ing on different lines? The probabilities are against 
its continuance as a general principle. And the notion 
that some other general principle will arise to take its 
place appears to be rather an article of faith than a propo- 
sition on which a science can be based.*' 

And, as Mr. Buckland goes on to point out, the gener- 
ality to be looked for in such legal investigations is not a 
generality of institutions and principles to be discovered 
fixed in the legal systems of all times and all countries, but 
the generality of laws by which institutions and principles 
themselves change. 

1 6 Law Quart Aey. Hi. 



JURISPRUDENCE 133 

Sec. 298. If we are to employ both terms, Comparative 
Jurisprudence and General Jurisprudence, with different 
meanings, it would seem as if the latter must apply to the 
world. Austin, however, uses it in a narrow sense. He 
says : ** I mean by General Jurisprudence the science con- 
cerned with the exposition of the principles, notions, and 
distinctions which are common tP systems of law ; under- 
standing by systems of law the ampler and maturer sys- 
tems."^ But all the ^^ ampler and maturer systems" of 
which we have any knowledge, or are likely to have any 
knowledge, are derived either from the Roman Law or 
the English Common Law, and therefore come within the 
limits, as ordinarily defined, of Comparative Jurispru- 
dence. It may be said that there is no great harm done 
by calling Comparative Jurisprudence *^ General," but it 
has the evil result of suggesting the universal, and even 
the necessary, character of certain legal propositions, when 
the fact merely is that they have been accepted as true 
or convenient by certain jurists in Rome and by certain 
judges in England. 

Sec. 299. In defining the limits of Jurisprudence, it 
is important to consider how far a deontological element 
should be introduced into the science. Austin says that 
with the goodness or the badness of laws General Juris- 
prudence has no immediate concern, which distinguishes 
it from the Science of Legislation ; that some of the prin- 
ciples which are the subjects of General Jurisprudence are 
necessary; and that others, though not necessary, yet 
^*as they rest upon grounds of utility which extend 
through all communities and which are palpable or obvi- 
ous in all refined communities, occur very generally in ma- 
tured systems of Law."* 

1 2 Jar. (4th ed.) 1108. > 2 Jar. (4th ed.) 1109. 



134 NATURE AND SOURCES OF LAW 

Seo. 800. The Science of Legislation and Jurispmdence 
are, then, disting^oished, according to Austin, by the cir- 
cumstance that with goodness or badness of laws the lat- 
ter has no concern; but Austin does not emphasize the 
distinction with the savage stress which he sometimes 
employs. ** It is impossible/* he says, ** to consider Juris- 
prudence quite apart from Legislation." *^ If the causes 
of laws . • • be not assigned, the laws themselves are 
unintelligible." ^ In certain cases which do not try the 
passions [the teacher of Jurisprudence] may, with advan- 
tage, offer opinions upon merits and demerits."^ 

Seo. 801. Austin, as we see, admits the impossibility of 
considering Jurisprudence, as he defines it, by itself, and 
any one who has tried to do so will agree with him. 
Writers have shrunk, on the one hand, from limiting 
Jurisprudence to a mere classified digest of established 
rules, and, on the other hand, from saying that Juris- 
prudence is the science of what ought to be the Law of 
Utopia. The existence of Law as a fact has always been 
recognized, though not always with precision, as a neces- 
sary element in the subject-matter of Jurisprudence. 

Seo. 802. There are, in truth, three ways of consider- 
ing the Law ; that is, the rules applied by the courts. 
First, we may consider only the rules which have been 
actually adopted. This excludes the discussion of those 
cases which do not fall within the established rules. We 

1 2 Jar. (4th ed.) 1118, 1114« It nrast be borae in mind that the 
Science of Legislation, according to Austin, is concerned with the Law 
as it ought to be. He regards all changes and improvements in the 
Law as made by legislation, direct or indirect It is only the changes 
wrought by statutes which are commonly included in legislation, but 
Austin makes it cover changes and additions in the Law, however 
wrought. 



JURISPRUDENCE 135 

have only to determine what rules have actuallj been 
adopted. Or, secondly, we may consider the rules which 
have been actually adopted, and determine what those 
rules are, and may also consider what rules ought to be 
adopted in those cases which do no not come within the 
established rules, or, thirdly, we may consider what the 
Law ought to be in all cases. 

Sec. 803. This last method, it should be observed, does 
not involve going back to a tabula rasa. Rules based on 
statute and precedent may have become so bound up with 
institutions which are on the whole beneficial, that it may 
not be wise to interfere with them, although they would 
never be established at the present day in a new commu- 
nity. For instance, that a jury is to consist of twelve 
persons, that it must be unanimous, that its verdict of 
acquittal in a criminal case cannot be set aside, — all these 
might not be adopted in a brand new code for a brand new 
State, and yet it might not be wise to alter them in a 
country where they had long prevailed. 

Sec. 304. But though this be true in the third way of 
dealing with the Law, yet, under this method, the existence 
of present rules of Law is only one of the facts in the con- 
dition of a community, like their language or their usual 
occupations, which are to be taken into account in deter- 
mining what is best for them. What the Law of that 
community <Hf^A^ to be, under all the circumstances, is the 
sole purpose of the inquirer. This third method of con- 
sideration must, therefore, be deemed appropriate to the 
Science of Legislation, but foreign to the Science of Juris- 
prudence. 

Sec. 305. The first mode is undoubtedly appropriate to 
Jurisprudence. Is the second ? I conceive that it is. In 



136 NATURE AND SOURCES OF LAW 

older days, when the rules composing the Law were 
thought of, or at any rate talked about, as deducible, with 
unerring certainty, from unquestioned principles, it was 
customary to speak of Jurisprudence as dealing only with 
rules already established, for those rules were feigned to 
hold within themselves all possible doctrines of the Law ; 
but now that we know more of the mode of growth of the 
Law, it is not the immutability of legal principles which 
attracts the mind, it is the prospect of their future de- 
velopment. 

Sec. 806. To illustrate: Whether a donatio eauaa 
martU ougJU to be good without delivery, is not a topic 
for English Jurisprudence, because it is settled that de- 
livery is necessary. Neither is the question whether a 
devise to A. for life, remainder to his heirs, ought to give 
A. a fee, for the rule in Shelley's Case settles that it 
does. On the other hand, whether the certification of a 
check by the drawee after delivery ought to discharge 
the maker, was a topic for the Jurisprudence of Massa- 
chusetts before the decision of the Supreme Judicial Court 
of that State that it did. Now the corresponding topic of 
Massachusetts Jurisprudence is that such certification does 
discharge the maker. To consider whether now in Mas- 
sachusetts such certification ought to work a discharge, is a 
question for the Science of Legislation, not for the Juris- 
prudence of Massachusetts. 

Sbo. 807. And yet, even in Jurisprudence, it may some- 
times be necessary to consider the beneficial or injurious 
character of an established doctrine of Law, in order to 
determine whether it should be extended. For instance, 
in most of the United States it is the Law that a deed 
with covenant of warranty passes the legal title to land 



JURISPRUDENCE 137 

afterwards acquired. The wisdom of establishing such 
Law has been much doubted, but the Law itself is well 
settled. But on a question whether the doctrine should 
be extended to the case of a deed which in terms disclosed 
the want of title, — where, that is, the warranty was in 
effect only a promise of indemnity, — it would seem that 
the consideration of the beneficial or injurious character 
of the rule would be a matter for Jurisprudence. 

Sbo. 808. In Comparative Jurisprudence there are first 
to be considered separately two or more systems of Law, and 
then the results are to be compared and their resemblances 
and differences noted ; and further, when there is agree- 
ment on some points and difference on others, it seems 
within the scope of Comparative Jurisprudence to consider 
which system, taking into account the points agreed upon, 
holds the sounder view on those in which they differ. 
For instance, suppose that in two States the Law concern- 
ing bills and notes is on most points the same, but that in 
one of them a man who takes a promissory note in pay- 
ment of a preexisting debt is deemed a purchaser for 
value, and that in the other he is not ; which State, on 
this particular point, has reached the better conclusion, is 
a question falling within the scope of their Comparative 
Jurisprudence. But to consider what ought to be the Law 
in a matter upon which, in both of the States, the Law is 
definitely settled the same way, falls outside of their Com- 
parative Jurisprudence. 

Sbo. 809. In General Jurisprudence, the only deonto- 
logical question excluded from consideration is what ought 
to be the Law on those points where the Law is in fact 
uniform in all human communities. Except in this area, 
which is probably not large, the element of what ought to 



138 NATURE AND SOURCES OF LAW 

be the Law is properly a subject of General Jurisprudence, 
and General Jurisprudence swallows up, or, if one prefers 
to say so, is swallowed up by the Science of Legislation. 

Sec. 810. If I am right in thinking that Jurisprudence, 
within the limits indicated, comprises the consideration of 
Law as it ought to be, then, since the doctrines of morality 
are largely, as we shall see more clearly later, a most im- 
portant source from which the judges draw and ought to 
draw the rules which make the Law, the true theory of 
morals comes properly within the purview of Jurispru- 
dence, and I cannot, therefore, blame Austin, as some do, 
for dealing with the foundations of morality in his treatise. 
From his own point of view, indeed, it seems difficult to 
justify his procedure. He endeavors to confine Juris- 
prudence to the Law that has been actually settled, and to 
eliminate, as far as possible, the deontological element, and 
therefore the discussion of the foundations of morality 
seems out of place in his book. But on the definition of 
^* Jurisprudence," which appears the sounder one, the 
true grounds of morality seem a proper subject of con- 
templation. 

Sec. 811. There are one or two narrower definitions 
of Jurisprudence which should not be passed over. Pro- 
fessor Holland describes Jurisprudence as a formal ana- 
lytical science as opposed to a material one : ^^ That is 
to say, that it deals rather with the various relations 
which are regulated by legal rules than with the rules 
themselves which regulate those relations"; and he likens 
it to the science of Grammar ; ^^ Whether the possessive 
case of a noun substantive is expressed by a specific modi- 
fication of its termination, or by prefixing to it a specific 
preposition, is a question of the matter of language ; but 



JURISPRUDENCE 139 

that the possessive idea, however variously expressed, yet 
finds some expression or other in every family of human 
speech is a proposition which relates to linguistic form." 
And he goes on to say that ^^ Comparative Law collects 
and tabulates the legal institutions of various countries," 
and that Jurisprudence sets forth ^^ an orderly view of the 
ideas and methods which have been variously realized in 
actual systems. It is, for instance, the office of Compara- 
tive Law to ascertain what have been at different times 
and places' the periods of prescription. • • . It is for 
Jurisprudence to elucidate the meaning of prescription, in 
its relation to ownership and to actions. ... A system 
of Jurisprudence might conceivably be constructed from 
the observation of one system of Law only, at one epoch 
of its growth. . . • Jurisprudence is therefore not the 
material science of those portions of the Law which va- 
rious nations have in common, but the formal science of 
those relations of mankind which are generally recognized 
as having legal consequences."^ 

Sbo. 812. This sounds plausible, but a little reflection 
shows that it is true of Law, as it is of Logic, that *' the 
notions of form and formal relations are by no means so 
simple and free from ambiguity that, by their aid, one 
can at once solve a complicated problem of philosophic 
arrangement." Jurisprudence is, in truth, no more a 
formal science than Physiology. As bones and muscles 
and nerves are the subject-matter of Physiology, so the 
acts and forbearances of men and the events which hap- 
pen to them are the subject-matter of Jurisprudence, and 
Physiology could as well dispense with the former as 
Jurisprudence with the latter. As Professor Piatt has 

1 Holland, Jur. (lOth ed.) 6-8. 



140 NATURE AND SOURCES OF LAW 

truly said : ** Without resorting to acts and forbearances 
and to the states of fact under which they are commanded. 
Law cannot be differentiated at all ; not so much as the 
bare framework of its chief departments can be erected. 
An attempt to construct, quite apart from all the matter 
of Law, even the most general conception of ownership or 
contract, would be like trying to make bricks not merely 
without straw but without clay as well." 

Sec. 818. Let us take, for instance, the question of 
prescription, which is one of the instances given by Pro- 
fessor Holland. Under the head of Prescription, the fol- 
lowing matters have arisen and been determined differ- 
ently in different countries. 1. Does prescription bar 
the remedy or actually pass title ? And is the rule differ- 
ent with regard to ownership of land from what it is in 
the case of easements? 2. Must prescription begin with 
a possession taken in good faith ? 8. Can successive in- 
dependent adverse holders tack their times to produce the 
period required for prescription? 4. Can constructive 
possession be given by color of title ? 5. Can disabili- 
ties be tacked 7 6. After the period of prescription has 
begun to run, can it be suspended? 7. Does prescription 
run without the knowledge of the person against whom it 
runs ? Are these and other like questions fit topics for 
Jurisprudence ? If they are, then the whole subject of 
prescription, except the arbitrary determination of the 
periods of prescription, is within the domain of that 
science ; if not, then Jurisprudence is confined to a jejune 
list of propositions, and indeed, it might be said that Ju- 
risprudence teaches that property may be transferred from 
one person to another without a conveyance, and that 
Comparative Law furnishes us the cases of prescription in 
which this principle is applied. 



JURISPRUDENCE 141 

Sec. 814. The real relation of Jurisprudence to Law 
depends not upon what Law is treated, but haw Law is 
treated. A treatise on Jurisprudence may go into the 
minutest particulars, or be confined to the most general 
doctrines, and in either case deserve its name; what is 
essential to it is that it should be an orderly, scientific 
treatise in which the subjects are duly classified and sub- 
ordinated. ^* Jurisprudence is the most general word we 
have to denote the scientific treatment of Law, and there 
is no reason to restrict its natural meaning. '' It is notice- 
able that, as Professor Piatt remarks, Professor Holland is 
80 far in practice from excluding the material of Law from 
his book on Jurisprudence that he has justly laid himself 
open to the charge of dealing with the special subject- 
matter of a particular system as if it were universal. 

Sec. 815. Mr. Lightwood, in his valuable treatise on 
Positive Law,^ takes a somewhat different view of Jurispru- 
dence. He says : ^^ As long as we take our distinctions solely 
from English Law, and explain them merely by history, we 
do not enter upon science, for the distinctions and principles 
may be merely accidental, and the historical reasons may 
have no reference to utility. If, however, we were to 
show that these distinctions and principles have a real 
basis in the wants of the people, we should then treat the 
Law scientifically, and we should work out the Particular 
Jurisprudence of the country. This at least is the only 
natural meaning I can give to this phrase." 

Sbg. 816. But thus to reject from the domain of Juris- 
prudence all of the Law which a writer does not believe 
to *^ have a real basis in the wants of the people " is hardly 
admissible. It is true, as has been said, that Jurispru- 

ip. 10. 



142 NATURE AND SOURCES OF LAW 

dence may extend to the consideration of the Law as it 
ought to be, so far as is consistent with the Law already 
established, but it also includes an orderly exposition of 
the Law that is established, and when we omit this latter 
element, we leave the domain of Particular Jurisprudence 
for that of the Science of Legislation. 

Sec. 817. Mr. Lightwood then proceeds to General 
Jurisprudence. He says that the system of one country 
is to be compared with those of other countries ; that 
certain common distinctions and principles are detected ; 
that these ^ are assumed to have a more permanent value 
than others"; that, at last, it will be discovered that 
these ^^ only differ from the rest in that they clearly follow 
the principle of utility"; and that ^thenceforth, then, we 
can provisionally guess that the principle is satisfied by 
comparing different systems, but when this method fails, 
we can apply the principle directly." ^ 

Se2C. 818. But these assumptions and guesses seem un- 
justifiable. Are those elements which are common, say, 
to the English and Roman Law, of more permanent value 
than others? Compare the rule forbidding conditions 
restraining marriage with the rule authorizing the disin- 
heritance of children. In the Common and Roman Law 
alike, general conditions in restraint of marriage are void, 
but on the disinheritance of children the systems differ. 
Surely we cannot ^* assume " that the rules avoiding con- 
ditions in restraint of marriage *^have a more permanent 
value " than the rules relating to the power of disinher- 
itance. Nor do we *^at last" discover that the former 
rules differ from the latter ^^in that they clearly follow 
the principle of utility." 

1 Lightwood, pp. 15, 16. 



JURISPRUDENCE 143 

Seo. 819. And it is not only in reading Mr. Light- 
wood's book that one should bear in mind that rules of 
Law shown to be common to the Roman and English sys- 
tems cannot necessarily be accepted as what the Law 
ought to be. It is undoubtedly in favor of a legal princi- 
ple that it has been received by two able men so unlike as 
Ulpian and Lord Coke, but yet it is not only possible, but 
extremely likely, that on many points both Ulpian and 
Lord Coke were ignorant of what was best for a commu- 
nity. Is it so clear, for instance, that the noxali% actio of 
the Roman Law, and the liability of a master for the acts 
of his servant in the English Common Law, are founded 
on a wise policy ? Or take the question alluded to above 
on conditions in restraint of marriage. Many of the wisest 
and best men would be only too glad of the aid of the Law 
in restraining marriages. The question of population is 
looked at from a totally different point of view from what 
it was when the foundations of the Roman and the Com- 
mon Law were laid. 

Seo. 820. The notions of personal righteousness may 
not have changed much, but certainly at the present day 
one would not wish to borrow one's ideas of the best mode 
in which society should interfere with its members, either 
from the ^ classical jurists " or the ** sages of the Common 
Law," or would feel safe in concluding that, because both 
those two highly respectable bodies thought alike on a 
question of social morality or political economy, they 
must be right ; and yet this feeling that doctrines com- 
mon to the Roman and English Law must be right and 
fundamental, has led writers to confound Comparative 
with General Jurisprudence, and to feel justified in laying 
down rules as universal and, indeed, necessary, because 



144 NATURE AND SOURCES OF LAW 

they found them both in the Digest and in the notes to 
Williams's Saunders. 

Sec. 821. Mr. Lightwood makes a further division be- 
tween Pure and General Jurisprudence, — the first deal- 
ing with distinctions, the second with principles. But it 
seems impossible practically to carry out this difference. 
What is a contract and what are the different kinds of 
contracts, would be, according to this division, matters of 
Pure Jurisprudence, while the question what contracts 
could be enforced would be for General Jurisprudence. 
But the kinds of contracts are innumerable; they may 
concern hats or cows, they may be between whites or ne- 
groes, they may be made at noon or at midnight, in town 
or in the country, in winter or summer, they may be writ- 
ten on white paper or on blue paper ; there is a myriad of 
possible distinctions ; but the only distinctions which are 
of consequence for Jurisprudence, for any kind of Juris- 
prudence, are those which affect the question of enforce- 
ability; and it is therefore practically impossible to 
consider distinctions and principles separately as the sub- 
ject-matter of Pure and General Jurisprudence respect- 
ively. 



PART II 

SOURCES OF THE LAW 

CHAPTER Vm 

STATUTES 

Ssso. 822. We have hitherto been considering the Na- 
ture of the Law. I have defined the Law as the rules laid 
down by the courts for the determination of rights and 
duties, and I have endeavored to point out the difference 
between the Law and the Sources from which the Law is 
drawn, and the confusion and errors which have arisen 
bom not distinguishing between them. We will now 
take up the consideration of these Sources. 

Sec. 828. The first Sources from which the courts of 
any human society draw the Law are the formal utter- 
ances of the legislative organs of the society. We can 
conceive of a society with judicial but no legislative or- 
gans. The courts of such a society would follow rules 
derived by them from other sources, say, from former de- 
cisions of their own, or from custom. But all modem 
civilized political societies have, in fact, legislatures. 

Sbo. 824. In any organized society there may be, and, 
in political societies particularly, there often are, several 
bodies which, within the limits marked out by the organi- 
zation of the society, or by the orders or tolerance of the 
supreme legislative body, have legislative functions. In 

145 



146 NATURE AND SOURCES OF LAW 

a country with a written constitution, the bodj of persons 
which enacts the constitution is the supreme legislature ; 
all other bodies and persons having leg^ative powers, 
including the ordinary Legislature, Congress, Assembly, 
Cortes, are subordinate to it. 

Sec. 825. In most modem societies the chief legislative 
functions are given not to individuals, but to assemblies. 
In political societies these assemblies are now usually rep- 
resentative, but sometimes all the persons considered as 
having political power have met and voted, as, for instance, 
in the ancient Greek cities, in some of the Swiss cantons, 
and in the town meetings of New England. And in so- 
cieties not political the legislatures are often composed of 
all the members of the society, as in the meetings of the 
stockholders of corporations and of the members of clubs. 

Sec. 326. Although at the present day the chief legis- 
lative functions are vested in bodies more or less numer- 
ous, whether representative or not, yet many legislative 
powers are given to individuals. Such is the power of 
the King or other head of the government to issue procla- 
mations, of a Secretary of the Treasury or Postmaster- 
General to make regulations, of a Commander-in-chief to 
issue general orders ; and so down, through all grades of 
officials, to a subaltern of infantry commanding a post. 

Sec. 827. The variety of names given to the legislative 
acts of these bodies is great : constitutions, statutes, laws, 
acts, ordinances, proclamations, regulations, orders; among 
the Romans, legea^ plebiacitOj aenatus-eanatUta^ edictOj eonsti- 
twtUmea ; among the Germans,^«8efoe, verordnungen. There 
is, unfortunately, no word recognized as the name of the 
genua. I know of no better way than to take the name 
which is given to the utterances of the highest ordinary 



STATUTES 147 

legislature in a political society, apply it to the whole 
genuii and call them all itatuies. 

Sbg. 828. This yariety of names has given rise to a no- 
tion that there is an essential difference between a statute 
and a proclamation, for example ; and^ of course, there 
may be the gravest distinction so far as politics are con- 
cerned, but from the point of view of Jurisprudence, the 
difference between statutes and proclamations is imma- 
terial. They both set forth general rules which are 
equally binding, and binding in the same way, on the 
courts. The fact that in countries without a written 
constitution the power of the highest legislature is prac- 
tically unlimited, while officials having legislative func- 
tions are generally closely limited in their use, tended to 
put the former into a separate class ; but now that the 
existence of governments with written constitutions has 
familiarized us, at least in the United States, with fre- 
quent and strict limitations upon the powers of the high- 
est ordinary legislative bodies, there seems small reason 
for distinguishing between statutes and proclamations. 
Every utterance of the most subordinate official, if it be 
within the legislative powers given to him, directly or in- 
directly, by the organization of the State, is as binding 
on the courts as any act of the supreme parliament or 
assembly, while every utterance of the highest legislative 
body which is beyond its constitutional competence is as 
invalid as an unauthorized order of the lowest official. 

Sbg. 829. The possession of legislative power is not 
confined to political bodies ; every organized body of 
men may have a legislative organ, and most of such 
bodies do, in fact, have one, be they churches, business 
corporations, charitable societies, or social clubs. 



148 NATURE AND SOURCES OF LAW 

Sbc. 880. The fonnal atteranoes of the legislatures of 
non-political organized bodies are not commonly called stat- 
utes ; thus, we speak of the canons of a church, or the 
by-laws of a business corporation. But this is a matter 
of nomenclature only ; for the purposes of Jurisprudence 
they are identical in character with the statutes of a 
State ; that is, they are binding upon the courts of the 
organization of which they are the canons or by-laws. 

Sec. 831. A distinction should be noticed among or- 
ganized bodies which are not States. Some of these 
bodies, although not States, are yet political; they are 
organs of the State, and are formed for carrying out its 
purposes ; some of its powers are delegated to tiiem for 
these purposes ; and, if these bodies have legislatures, the 
gener%l rules declared by such legislatures are really de- 
clared by the State; they are its statutes. Municipal 
bodies, like cities, are such political bodies, and the ordi- 
nances issued by them are, in truth, statutes of the State. 
So when legislative power is granted to an individual, as 
to a King, President, Secretary, or General, and he puts 
forth proclamations or regulations containing general 
rules, the rules are, in truth, put forth by the State ; and 
for juristic purposes they are identical with the statutes 
of the ordinary supreme Legislature. 

Sbo. 832. But a church, or a business corporation, or 
a charitable society, or a club, is not an organ of the 
State ; it is not a political body created for political pur- 
poses ; and its canons or by-laws or rules are not statutes 
of the State. It is true that such bodies often owe their 
existence to the State, and can legislate only on the sub- 
jects and within the limits prescribed by it, but the meet- 
ing of the stockholders of an automobile manufacturing 



STATUTES 149 

company is not an organ of the State to oany out its pur- 
poses ; it is the organ of the company to carry into effect 
the objects of the company. The State merely allows the 
company to carry out its objects; it does not make these 
objects its own. 

Sec. 833. If we should call the by-laws of a corporation 
the statutes of the State, because the State, if it saw fit, 
could prevent their being passed by the stockholders, and 
because it will open its courts to enforce the observance of 
them by the members of the corporation, we should have 
to call every general rule issued by a person whom the 
State permits to issue it, and which it will regard in its 
courts, a statute of the State. Thus, a general rule by 
the head of a household that the children shall go to 
bed at eight o'clock, or that the cook shall always boil 
eggs for two minutes and a half, would be a statute of the 
State. 

Seo. 834. Indeed, this would not be confined to general 
rules : every particular order given by any person who has 
a right to give such an order, although, from its lack of 
generality, it could not be called a statute or a law, would 
yet be a command of the State. A master has a right 
to tell a servant to bring him the mustard. Should she 
refuse, he has a right to dismiss her, and the State will 
protect him in this right; and, therefore, on the theory we 
are considering, the order to bring the mustard is a com- 
mand of the State. Even Austin, I think, would shrink 
from such a conclusion. 

Seo. 335. Though courts of the State often have oc- 
casion to enforce the legislation of non-political organi- 
zations, it is not a source of Law to them. Thus, suppose 
a member of a club is charged with improper conduct, and 



150 NATURE AND SOURCES OF LAW 

a committee is chosen, in accordance with the by-laws, to 
try him, the by-laws are the sources of Law to the com- 
mittee as the judicial organ of the club; they are commands 
of the club to them and binding upon them ; but suppose 
the peccant member is expelled and sues for reinstatement 
in a court of the State : in that case the by-laws do not 
come as commands to the judge from the State; they are 
simply facts, one of the elements of the contract which the 
member made with the club on joining it. The distinction 
would generally be brought out by the procedure. The 
club committee would take judicial cognizance of the 
club's by-laws; the court of the State would require them 
to be proved. 

Sbo. 386. It should be observed that though the nature 
of that which is a source of Law for a non-political body 
but not for the State, is brought out with the most clear- 
ness in considering legislative enactments, it is also true 
that other sources of Law for a non-political body, prece- 
dents in a church court, for instance, cannot properly be 
considered sources of Law for the State.^ 

Sec. 337. To put the whole matter in another way. A 
distinction is to be made between the general rules which 
the courts of a State lay down, that is, the Law, and the 
decisions which they make. In making the decisions they 
apply the Law to the facts. Among the facts may be the 
rules established by non-political bodies, and these rules 
are then elements or, if you please, sources of the deem&M^ 
but they are not sources of the Law. 

Sbo. 338. It is convenient to distinguish those rules 

1 Of coarse this has no application to courts which, while called chorch 
courts, are simply part of the State machinery, as is the case with the 
ecclesiastical courts in England. 



STATUTES 151 

made by the State, either directly or through its agents, 
from those made by other bodies or persons by permission 
of the State, and to regard the former as sources of Law, 
and the latter as facts ; but (except as to matters of proof, 
which are likely to be different in the two classes, but may 
yet be subject to a great number of artificial rules), there 
is little practical difference whether we say that the State 
has commanded children to obey their teacher's orders and 
that Mr. Barlow has ordered Tommy Merton to take his 
finger out of his mouth, or whether we say that the State 
has commanded Master Tommy to remove the misplaced 
member. In the suit of Merton v. Barlow for trespass quia 
tn et armis, the court would reach the same result on the 
one theory as it would on the other. 

Sbg. 889. The fact that the distinction is not of vital 
importance explains, perhaps, the persistence in Ger- 
many of what is called autonomy, and on which there 
has been much discussion. Autonomy is the legislative 
power of a body other than the State to make orders 
which are sources of Law to the courts of the State. 
On two things all late writers seem agreed.^ First, 
that the orders put forth by officials of the State are 
not autonomic; they are simply the commands of the 
State issued through these officials instead of through the 
ordinary legislature. Secondly, that the by-laws of ordi- 
nary private corporations are not autonomic ; such by- 
laws are properly sources of Law to the corporation, but 
they are not sources of Law to the courts of the State ; 
to them they are simply facts. 

Sbo. 840. The truth seems to be that the whole con- 
ception of autonomy is an historical and not a logical one; 
that it springs from a lack of clearness of perception. In 



152 NATURE AND SOURCES OF LAW 

the loose political organization of the Middle Ages, many 
towns and other communities, though situated in a king- 
dom or duchy, were largely self-governed, and had 
written laws which were called atatuta. Such commu- 
nities were originally separate political bodies with in- 
dependent organizations, but in a state of subjection, 
more or less well defined, to the feudal lord on whose 
territory they were situated. At present this condition 
of things has passed away, the towns have become simply 
municipal agents of the larger State, the kingdom or duchy, 
and any rules passed by them are to be considered as 
emanating from such larger State. During this process 
of degeneration, or at least of change, while these towns 
had ceased to be independent States, but were not yet 
recognized as simply organs of the larger State, these 
ideas of autonomy arose.^ 

Sec. 841. Form of Statutes. The form of a statute is, for 
the purposes of the Law, immaterial. Whether it is com- 
mitted to writing or whether it is pronounced orally is in- 
different, though, of course, for the sake of preservation, 
it is in fact always committed to writing. 

Seo. 842. The Romans made a distinction between jus 
scriptum and Ju$ non seriptum, and took the phrases liter- 
ally, including in the ju9 scriptum not only the statutes 
of the supreme legislative bodies, but also the edicta magis- 
tratuum and even the responsa prudentium. As Savigny 
says,^ it was the form of the Law at its origin that deter- 
mined its name. 

1 It is not impoBsible that a similar change is going en in the relation 
of the States of the American Union to the General GoTemment ; such 
changes are apt to be hidden from the eyes of contemporaries. 

On autonomy see, farther, Appendix YI. 

s 1 Heat rOm. Recht, { 22. 



STATUTES 153 

Sec. 848. In France, during the Middle Ages, ju9 
scriptum was used for the Roman Law as opposed to the 
customary Law, as in the Register of a Parliament of 1277, 
cited by Ducange (mift voc. Jus aeriptuni)^ ^^Li Advoeat ne 
ioient M hardi de eux mealer d^aleguer Droit eicrii^ Id H 
Ooustumes ayent Uvh, mSs usent de Oaustumes,^* 

Sec. 844. Sir Matthew Hale, in his History of the 
Common Law, confines the term lex ecripta to Acts of 
Parliament, *^ which in their original formation are re- 
duced into writing and are so preserved in their original 
form, and in the same style and words, wherein they 
were first made.'' The rest of the English Law he calls 
legee nan seripUB^ including the Civil and Canon Law, 
so far as they are in force in England. Blackstone follows 
Hale. 

Sec. 845. Thibaut says thntjui aeriptum is made up of 
the commands proceeding directly from the supreme power 
of a State, whether it be actually written or not; and 
Austin gives this as the meaning of the word in the 
mouths of the modem Civilians, but justly remarks that 
^^ nothing can be less significant or more misleading than 
the language in which it is conveyed"; and that it is 
unsuited to express any distinction of importance. The 
terms ytM acriptum sad jus nan scriptum seem to have been 
given up by the late German writers. 

Seo. 846. In view of the uncertainty of the meaning 
of the phrases *' written law," and *^ unwritten law," of 
the inaptness of these phrases to any of the supposed 
meanings except that of the Romans, and of the unimpor- 
tance of the distinction which they denoted among the 
latter, the best way is to follow the modern German prac- 
tice, and discontinue the use of the terms altogether. 



154 NATURE AND SOURCES OF LAW 

Sec. 347. Q-enerality of Statutes. A statute is a gen- 
eral rule. A resolution by the legislature that a town 
shall pay one hundred dollars to Timothy Coggan is not 
a statute. This mark of generality which distinguishes a 
statute from other legislative acts does not seem to es- 
tablish a very important distinction ; both the statute and 
the resolution or other particular enactment emanate from 
the same authority, and both alike are binding on the 
courts. In a suit by Coggan against the town for not 
paying the one hundred dollars, or by the town against 
its treasurer's bondsmen for paying it without authority, 
the resolution would be as binding on the court as if it 
had been a statute which concerned every citizen. The 
difference between statutes and other legislative acts, 
though of little importance practically, is, however, of 
consequence in Jurisprudence, for Jurisprudence is a 
systematic and scientific arrangement of general rules; 
isolated particular commands are ordinarily no proper 
subjects for it. 

Sec. 348. The generality necessary in order that a 
legislative enactment be recognized as a statute, may 
come either from its applying to a whole community or 
class, or perhaps from its applying as a permanent (though 
not necessarily perpetual) rule to the conduct of an indi- 
vidual ; for instance, an enactment that A. should never 
pay any taxes would perhaps be properly called a statute. 
There are some sensible remarks on the subject in Mr. Ham- 
mond's note to the first volume of Blackstone's Com- 
mentaries,^ but it seems a trifling matter on which to 
spend much thought. ^ / 

Sec. 349. Foreign 8tatute%rt^% is only the Acts of 

1 p. 126, note 16. 



STATUTES 165 

the legislative organs of a court's own State that come 
under the head of statutes as sources of Law for such 
courts. The Law of a State may direct that in certain 
contingencies the statutes of foreign States shall be taken 
account of by its courts, but such statutes are no more 
sources of the Law of the State than are the provisions of 
a contract or will which may be brought in question. 

Sec. 350. Ifnaetment of Statutes. What is necessary 
for a statute to have power as a source of law ? It must, 
of course, be passed by the legislative body, but, beyond 
this, is any publication required? The practice in the 
matter greatly varies. 

Sec. 351. Boman Law. In the republican period the 
word ^^ promidgare " meant to bring forward a project of 
a law; later it seems to have been used in the sense of 
issuing a law. During the republic, no publication apart 
from the passage of a statute appears to have been required 
as a condition precedent to its going into effect. Under 
the Empire the Emperor had both the legislative and 
executive power, but in addition to the expression of his 
will as legislator, there does not seem to have been any 
further step necessary to be taken by him as an executive 
officer to make a statute a valid one. I am aware of no 
theory in the Roman Law that any ^' publication " in the 
sense of the modem Civilians was necessary to make a 
statute operative.^ 

Sbo. 852. Modem CfivU Law. According to the theory 
which prevails generally on the Continent of Europe, four 
things are necessary in order for a statute to become a 
source of Law. It must be (1) passed by the legislature, 
(2) declared to be a law by a proper document, (3) ordered 

iKrttger,a66,2e7. 



156 NATURE AND SOURCES OF LAW 

to be published, and (4) published. The first of these acts 
is performed by the legislative department of the Ooveru' 
ment, and the other three by the executive department. 
The name commonly used to indicate the performance of 
the second and third acts in France and in those countries 
which have taken their modern Jurisprudence from France 
is promulffation ; in Germany it has usually been called 
Ai^fertigung. 

Sbc. 853. The distinction between promulgation and 
publication has been well put thus : ^^ On a quelquefoii 
cormderS ee$ deux termes eamme synonymen; leur 9ignifiea- 
tian est cependant loin d*Stre identique. La pramulyatian 
est Facte par lequel le roi en $a qualitS de chef du pauvoir 
executif attegte au carps social V existence de la loi et en or- 
donne V execution; la publication^ au contraire^ est le mode 
de pvhlieitS d Taide duquel la hi est portSe a la connaia- 
sance des citoyensJ*^ The distinction, however, seems often 
to be disregarded, and promulgation to be used as including 
publication. 

Sec. 854. In some of the Continental countries, the 
chief executive ofEcer has no part in legislation. This is 
the case with the Emperor of Germany and the President 
of the French Republic. In such countries he has no con- 
cern with the first of the acts mentioned ; but generally 
in the monarchical countries of Europe he takes part in 
legislation and therefore shares in the performance of the 
first act. What he does as legislator is called ^^ sanction- 
ing," to distinguish from the promulgation which is his 
act as administrator. Thus in the Constitutional Charter 
of the Bourbons on their return, in 1814, it was provided : 
^^Le Roi sevl sanctionne et promvlgue les loisy^ while in the 
Constitution of the French Republic for 1848 we read : 



STATUTES 157 

^^ Lt President de la MSpullique pramulfffie lee laie au nom 
du peuple franeaieJ** 

Sbo. 855. A corollary from the doctrine of the need of 
promulgation and publication arises from the promulga- 
tion being made known in different places and at different 
times. The Code Napoleon, for instance, provides as fol- 
lows: ^^Lee lots eont ezScutoires dans tout le territoire 
frangais^ en vertu de la promulgation qui en estfaite par TEm- 
pereur. Mies seront exScutSes dans chaque partie de F Um- 
pire du moment ot^ la promulgation en pourra Stre eonnue. 
La promtdgation faite par VEmpereur sera rSputSe eonnue 
dans le dSpartement oik siSgera le gouvemementy unjour apris 
eelui de la promulgation; et dans chacun des autres dSparte- 
mentSj apris V expiration du mSme dSlai^ augments d'autant 
de jours qu^U y aura defois dix myriametres enJtre la wile 
od la promulgation en aura StSfaite^ et le ehrf-lieu de chaque 
dSpartement'*'^; and, save by the changes called for by 
successive revolutions or restorations, the Law has so re- 
mained, except so far as it is modified by an ordinance of 
the year 1816, which provides that the promulgation of laws 
shall result from their insertion in the Bulletin des Lois^ 
and that the promulgation shall be considered known in 
the Capital, in accordance with the Code, the day after 
the Bulletin des Lois is received from the government 
printer by the Ministry of Justice, the time in the depart- 
ments being calculated from this according to the Code. 

Sbc. 856. The fact of a statute going into effect in 
different parts of a country on different days would seem 
likely to produce difScult questions of the same kind as 
those which arise in the Conflict of Laws ; in the case of 
the latter there being a conflict between the laws of dif- 
ferent places, and in the case of the former a conflict 



158 NATURE AND SOURCES OF LAW 

between the laws of different times. Thus, suppose two 
Frenchmen, the ehrfdieux of whose departments are one 
ten and the other thirty, myriametres from Paris should 
make a contract on September 20 by telegraph, and 
that on September 17 the Bulletin de$ Lais^ containing a 
statute which affects the contract, has been received at 
the Ministry of Justice, — does the statute govern the 
contract ? 

Sbc. 857. The provision shows a striking difference 
between the French and the English mind. A French- 
man says a man cannot know the law until he has heard 
or seen it; it is unjust to hold a man bound by a statute 
which he could not know; the further a man lives from the 
seat of Government the longer will it be before the news 
of the making of a statute reaches him; and not to have 
a provision like that of the Code Napoleon would be the 
greatest injustice. An Englishman would be likely to 
say: Who reads the Bulletin den Loin f If it contains a 
statute which is of great importance, the whole country 
will know that such a statute has heen passed by the 
legislature long before it is promulgated. If the statute 
is not one that has excited public interest, the arrival 
of the BuUetin den Lain at the ehef-lieu of a department 
is one of the most insignificant factors in the general 
knowledge. Is it immediately known by one in a thou- 
sand or one in twenty thousand of the inhabitants ? It 
is foolish to worry about one or more grains of sand in 
such a heap of ignorance. Does any man know all the 
Law governing his actions ? It is a serious evil to com- 
plicate the Law, and offer tempting opportunities for liti- 
gation by making a statute applicable to some citizens on 
one day and to other citizens on another. 



STATUTES 159 

Sec. 858. Scotland. The Statute of 1581, e. 128, re- 
cited ^^ that oftentimes doubtes and questions arisis, touch- 
ing the Proclamation of the Actes of Parliament, and 
publication thereof: It being sumtimealledged be the lieges, 
that they are not bound to observe and keepe the samin 
as Liawes, nor incur ony paines conteined therein, quhill 
the same be proclaimed at the mercat croces of the head 
Burrowes of all Schires," and then proceeded to enact 
that all acts and statutes of Parliament ^^ sail be published 
and proclamed at the mercat-croce of Edinburgh onely, 
Quhilk publication ... to be also valiable and sufScient 
as the samin were published at the head Burrowes of the 
haill Schires within this Realme. . . . The haill Lieges 
to be boundin and astricted to the obedience of the saidis 
Actes as Lawes, fourtie dayes, after the publication of the 
samin, at the said mercat-croce of Edinburgh, being by- 
past." ^ Since the Union there have, of course, been no 
Scottish Parliaments. 

Sec. 859. England. In England the King assents to 
the passing of Acts of Parliament as one of the members 
of the legislature; to use the nomenclature common on 
the European continent, he ^^ sanctions" them; but no 
^^publication" is required for them. Those who are 
satisfied with the reason given by Blackstone can accept 
it; it is, he says, ^^ because every man in England is, in 
judgment of law, party to the making of an Act of 
Parliament, being present thereat by his representatives." ^ 

Sec. 860. The reason indeed is much older than Black- 
stone. In early times the laws of each Parliament were 
transcribed on parchment and sent by the King's writ to 

1 See 1 Enk. Inst. Bk. 1, tit 1, § 37. 

>1 Bl. Com. 185. See Austin's sneer, 2 Jur. (4th ed.) 642, 648. 



160 NATURE AND SOURCES OF LAW 

the sheriff of every county, to be there proclaimed. 
Lord Coke^ gives copies of a writ in the tenth year of 
Edward III., and another in the first year of Richard II., 
and says that the like writs continued until the beginning 
of the reign of Henry VII. But in the case of Rex v. 
BUhop of Ohieheiter^ which was prismunire on a statute, 
upon Serjeant Cavendish, of counsel with the defendant, 
objecting that the statute had never been published in the 
county. Sir Robert Thorpe, C. J., said: ^^ Although proc- 
lamation be not made in the county, every one is bound 
to know it [the statute] as soon as it is made in Parlia- 
ment; for as soon as the Parliament hath concluded any- 
thing, the law intends that every person hath notice 
thereof, for the Parliament represents the body of the 
whole realm, and, therefore, it is not requisite that any 
proclamation be made, seeing the statute took effect before." 
Sec. 861. The distinction in England between public 
statutes and private statutes is well known. The courts 
take judicial cognizance of public statutes, and may con- 
sult any means of information they please ;' and the reason 
which Dwarris gives may well be the true one, namely, 
the impossibility of proving important ancient public 
statutes by anything that would be legal evidence in 
cases of a private nature. In fact, there are several early 
English statutes which do not appear on the rolls of Par- 
liament, and of which there is no ofScial transcript or 
exemplification, and which yet have been constantly rec- 
ognized as binding.^ 

1 4Ui Inst 26. * Year Book, SO Edw. m. 7 (1906). 

s 2 Dwarris, Statutes, 406-478. 

« See Hale, Hist. Com. Law, 12-16 ; Cooper, Pablic Records, 168-184; 
cf. Btx v. Jifferies, 1 Str. 446. 



STATUTES 161 

Sec. 862. The exifitence of private statutes must be 
proved in England by record evidence. 

Sbo. 363. VfiiUd StcUei. In the United States the 
same doctrine as to public and private statutes would 
seem, at first sight, to have been laid down. Thus the 
Supreme Court of the United States in 1868 ^ called at- 
tention to the impropriety of speaking of ^^ extrinsic evi- 
dence " in reference to public statutes, and ruled ^^ that 
whenever a question arises in a court of law of the ex- 
istence of a statute, or of the time when a statute took 
effect, or of the precise terms of a statute, the judges who 
are called upon to decide it have a right to resort to any 
source of information which in its nature is capable of 
conveying to the judicial mind a clear and satisfactory 
answer to such a question ; always seeking first for that 
which in its nature is most appropriate, unless the positive 
law has enacted a different rule." 

Sbo. 864. But the meaning of the words ^^ always seek- 
ing for that which in its nature is most appropriate " is 
ambiguous. If they merely mean that the court is morally 
bound to weigh the information like reasonable men, and 
give credence to that Which ought to convince such a 
man, the proposition, though somewhat unnecessary, is 
innocuous and suggests nothing new. But if they mean 
that the court, in reaching its conclusion, is bound by 
legal rules to consider certain facts to the exclusion of 
other facts, then a novel element is introduced in the 
mode of conveying knowledge of the existence of public 
statutes to the courts. 

Sec* 865. And this second meaning seems to be that 
which has generally, if not universally, prevailed in this 

1 Gardner v. The ColUetor^ 6 Wall. 499. 



162 NATURE AND SOURCES OF LAW 

country. It is true that the Supreme Court of California, 
in 1852,^ recognized the power of the court to seek in- 
formation from any sources as to the existence of a public 
statute, but this was disapproved and overruled by the 
same court fourteen years later,^ and there appears to be 
no other like decision in this country. It seems to be 
generally conceded that with us the existence of both 
public and private statutes must be established, just as 
the existence of a private statute must be established in 
England, by record evidence ; and the only matter ordi- 
narily discussed is what records are admissible and con- 
trolling. The principal question which has come up is 
how far the enrolled bill can be controlled by the journals 
of the Houses.' 

Sec. 866. Interpretation of Statutes. It may be urged 
that if the Law of a society be the body of rules applied 
by its courts, then statutes should be considered as being 
part of the Law itself, and not merely as being a source of 
the Law ; that they are rules to be applied by the courts 
directly, and should not be regarded merely as fountains 
from which the courts derive their own rules. Such a 
view is very common in the books. And if statutes 
interpreted themselves, this would be true ; but statutes 
do not interpret themselves ; their meaning is declared by 
the courts, and it ie mth the meaning declared ly the courts^ 
and with no other meaning^ that they are imposed upon the 
community as Law. True though it be, that, of all the 
sources from which the courts draw the Law, statutes 
are the most stringent and precise, yet the power of the 
judges over the statutes is very great ; and this not only 

1 Fowler y. Peirce, 2 Cal. 166. * SKerman y. Story, 90 Cal. 268. 
s On this qaeflUon see Field v. aark, U8 U. S. 640 (1801). 



STATUTES 163 

in countries of the Common Law, but also on the Conti- 
nent of Europe, where^ the office of judge is less highly 
esteemed. 

Sbc. 367. A statute is the expressed will of the legis- 
lative organ of a society, but until the dealers in psychic 
forces succeed in making of thought transference a work- 
ing controllable force (and the psychic transference of the 
thought of an artificial body must stagger the most ad- 
vanced of the ghost hunters), the will of the legislature has 
to be expressed by words, spoken or written ; that is, by 
causing sounds to be made, or by causing black marks to be 
impressed on white paper. ^* Only in an improper sense 
can we speak of a communication or transfer of thought ; 
the thought itself is not transferred, but the word gives 
only the possibility of a like process of thought, the re- 
production of a like spiritual movement in the mind of 
the hearer as in that of the speaker. • • • The principle 
of communication by words is wholly the same as of that 
by sig^s ; one means is complete, the other incomplete, 
but they work in the same way ; neither gives the thought 
itself, however exact the expression of it may be ; it gives 
only the invitation and the point of departure for it to 
reconstruct itself."^ 

Sbc. 368. A judge puts before himself the printed page 
of the statute book ; it is mirrored on the retina of his eye, 
and from this impression he has to reproduce the thought 
of the law-giving body. The process is far from being 
merely mechanical ; it is obvious how the character of the 
judge and the cast of his mind must affect the operation, 
and what a different shape the thought when reproduced 
in the mind of the judge may have from that which it 

1 2 Uiering, Geist des rOnL Reohta, 446, 446. 



164 NATURE AND SOUBCES OF LAW 

bore in the mind of tbe lawgiver. This is trae even if 
the function of the judge be deemed only that of attempt- 
ing to reproduce in his own mind the thought of the law- 
giver ; but as we shall see in a moment, a judge, starting 
from the words of a statute, is often led to results which 
he applies as if they had been the thought of the l^^ishi- 
ture, while yet he does not believe, and has no reason to 
believe, that his present thought is the same as any thought 
which the legislature really had. 

Sec. 869. As between the legLdative and judicial 
organs of a society, it is the judicial which has the last 
say as to what is and what is not Law in a community. 
To quote a third time the words of Bishop Hoadly: 
*^Nay, whoever hath an absolute authority to interpret any 
written or spoken laws, it is he who is truly the lawgiver 
to all intents and purposes, and not the person who first 
wrote or spoke them.'* And this is now recognized even 
in Germany : *' A judicial decree is as much as a statute 
the act of the law-making power of the State. Like the 
legislative determinations of the Law, so the judicial 
determinations are filled with the power and compul- 
sivef force of the State. A judgment of a court has the 
force of Law; it carries the whole force of the Law 
with it. A judicial determination of Law has, in the 
region belonging to it, the power of a fixed, legally bind- 
ing order, more fuUy, with stronger, more direct working, 
than the statutory, merely abstract statements of the Law. 
The power of Law is stronger than the power of Legisla- 
tion, a legal judgment maintains itself even if it contra- 
dicts a statute. Not by its legislative, but by its judicial 
determinations, the law-regulating power of the State 
speaks its last word/' ^ 

^ Billow, Gesetz and Rtchteramt, 6, 7. 



STATUTES 165 

Sbc. 870. But the matter does not rest here. A funda- 
mental misconception prevails, and pervades all the books 
as to the dealing of the courts with statutes. Interpreta- 
tion is generally spoken of as if its chief function was to 
discover what the meaning of the Legislature really was. 
But when a Legislature has had a real intention, one way 
or another, on a point, it is not once in a hundred times 
that any doubt arises as to what its intention was. If that 
were all that a judge had to do with a statute, interpreta- 
tion of statutes, instead of being one of the most difScult 
of a judge's duties, would be extremely easy. The fact 
is that the difSculties of so-called interpretation arise when 
the Legislature has had no meaning at all ; when the ques- 
tion which is raised on the statute never occurred to it ; 
when what the judges have to do is, not to determine what 
the Legislature did mean on a point which was present to 
its mind, but to guess what it would have intended on a 
point not present to its mind, if the point had been present. 
If there are any lawyers among those who honor me with 
their attendance, let them consider any dozen cases of the 
interpretation of statutes, as they have occurred consecu- 
tively in their reading or practice, and they will, I venture 
to say, find that in almost all of them it is probable, and 
that in most of them it is perfectly evident, that the 
makers of the statutes had no real intention, one way or 
another, on the point in question ; that if they had, they 
would have made their meaning clear ; and that when the 
judges are professing to declare what the Legislature meant, 
they are, in truth, themselves legislating to fill up casus 

1 On the interpretation of wUls and other inBtroments, see Appendix 
ym, Boles of Construction. 



t 



166 NATURE AND SOURCES OF LAW 

Sec, 871. The process by which a judge (or indeed any 
person, lawyer or layman, who has occasion to search for 
the meaning of a statute) constructs from the words of a 
statute-book a meaning which he either believes to be 
that of the LiCgislature, or which he proposes to attribute 
to it, is called by us ^^ Interpretation," by the Germans 

Sec. 872. Interpretation is of two kinds, grammatical 
and logicaL (Savigny's division into grammatical, logi- 
cal, historical, and systematic^ has not been generally 
followed.) Grammatical interpretation is the application 
to a statute of the laws of speech ; logical interpretation 
calls for the comparison of the statute with other statutes 
and with the whole system of Law, and for the considera- 
tion of the time and circumstances in which the statute 
was passed.' 

Sec. 878. It is sometimes said that the rules of inter- 
pretation applicable to statutes are in no way different 
from those applicable to other writings, and this, in a 
sense, is true, since statutes, like all writings, are intended 
to express in language the thoughts of human minds; 
but the statement needs some qualification, for a differ- 

^1 Sayigny, Heat lOm. Recht, f 82. 

*The 80-called ** legal Interpretation/* as has been often remarked, is 
no interpretation at all.- It contains two parts, authentic and usual in- 
terpretation. Authentic interpretation is defining the meaning of an 
earlier statute by a later. Usual interpretation is the attaching of a mean- 
ing to a statute by usage, or, with us, more commonly, by a judicial prece- 
dent A judge, in adopting a meaning for a statute in accordance ¥rith 
its authentic or usual interpretation, is not ascertaining its meaning from 
the statute itself, but is adopting a meaning for it from some other 
authority. 



STATUTES 167 

ence in the application of the rules for interpreting dif- 
ferent writings must arise from the greater precision, 
definiteness, and accuracy with which a writer is speaking 
or purporting to speak ; and so the rules of interpretation 
for an Act of Parliament may be very unsuitable to those 
for the Mecanique Celeste of La Place, or the Apocalypse 
of St. John, or the Frogs of Aristophanes.^ 

Sec. 874. The dependence of the statutes upon the will 
of the judges for their effect is indicated by the expres- 
sion often used, that interpretation is an art and not a 
science; that is, tiiat the meaning is derived from the 
words according to the feeling of the judges, and not by 
any exact and foreknowable processes of reasoning. Un- 
doubtedly rules for the interpretation of statutes have 
been sometimes laid down, but their generality shows 
plainly how much is left to the opinion and judgment of 
the court. Thus Savigny's three aids to interpretation 
are: Firtt^ the consideration of the law as a whole ; 
Second^ the consideration of the reasons of the statutes ; 
2%ircl, the excellence of the result reached by a particular 
interpretation.^ But their lack of precision he himself 

1 It may, hy the way, be observed that the most remarkable resalts of 
attemptlDg to apply to works of one class roles of interpretation adapted 
for those of a totally different class have been reached in the domain of 
theology. To interpret the poems and prophecies of Scripture as if they 
were the market ordinances of the City of New York, to deal ¥rith the 
fourth verse of the one hundred and tenth Psalm of David as if it were 
the fourth section of the one hundred and tenth chapter of the 17 ft 18 
Victoria has produced marvels of ingenuity, but of ingenuity wofnlly mis- 
placed. On the other hand the statement often met vrith that ** the 
Bible must be interpreted like any other book ** is based upon the fallacy 
that all books are to be interpreted alike, and begs the question, ** To what 
class of books does the Bible belong ? " 

> 1 Savigny, Heut. rOm. Recht, {{88-^7. 



168 NATURE AND SOURCES OF LAW 

notes, saying that the application of the second rule calls 
for much reserve, and that the third must be kept within 
the narrowest limits.^ 

Sec. 375. The rules of the Common Law, as laid down 
in HeydofCn Ca%e? are not more precise. ^^ For the sure 
and true interpretation of all statutes in general (be they 
penal or beneficial, restrictive or enlarging of the Com- 
mon Law) four things are to be discerned and considered: 
1st. What was the Common Law before the making of the 
Act. 2nd. What was the mischief and defect for which 
the Common Law did not provide. Srd. What remedy the 
Parliament hath resolved and appointed to cure the dis- 
ease of the Commonwealth. And 4th. The true reason of 
the remedy; and then the office of all the judges is always 
to make such construction as shall suppress the mischief, 
and advance the remedy, and to suppress subtle inven- 
tions and evasions for continuance of the mischief, and 
fTo private eanvmodo^ and to add force and life to the cure 
and remedy, according to the true intent of the makers of 
the Act, pro bono publico.^* 

Seo. 876. Of other rules of the Common Law, the 
principal seems to be that penal statutes are to be con- 
strued strictly, but this merely gives a turn to the judi- 
cial mind, and furnishes no clear rule where it shall go* 

Sec. 877. Yet some bounds on the power of interpre- 
tation there must be. How far can a judge go ? Wind- 
scheid answers the question thus: ^^ However clearly 
interpretation may recognize the real thought of the law- 
giver, it can recognize it as establishing Law only under 
the supposition that in the statement given by the legis- 
lator, an expression, if not a complete expression, of his 

1 See 1 Windflcheid, Pand. f 21. > 8 Co. 7 (1584). 



STATUTES 169 

real thought can be found. Therefore its principal, if 
not sole, activity will consist in quantitative extension and 
limitation of the Statute."^ Suppose, for instance, in a 
country where the Common Law prevails, that a statute 
is passed providing that any person setting fire to a house 
shall be liable to a certain punbhment, no court would so 
construe that statute as to include children under seven 
years of age, and yet the legislature has not excluded 
them, it never thought about them. The judge is clear 
that it would have excluded them had it thought about 
the matter, and so he attributes to it the actual intention 
to exclude them. 

Sec. 878. Plenty of instances where statutes have been 
so interpreted can be found at the Common Law ; the in- 
stance which I have given was of a limiting interpreta- 
tion ; here is an instance of an extensive one. Originally 
the right to recover for a tort did not survive, but the St. 
4 Edw. III. (1880), (?. 7, reciting that "in times past ex- 
ecutors have not had actions for a trespass done to their 
testators, as of the goods and chattels of the same testa- 
tors carried away in their life," enacted " that the exec- 
utors in such cases shall have an action against the 
trespassers." Under this statute the English courts have 
held that the survival is not confined to cases where exec- 
utors sue trespassers who have carried away the goods of 
testators in the lifetime of the latter, but extends to suits 
by administrators ; to actions for the conversion of goods ; 
to an action against a sheriff for making a false return on 
an execution ; to an action for a devastavit, or for remov- 
ing goods taken on execution before the testator, who was 
the debtor's landlord, had been paid a year's rent.^ And 

1 1 Windacheid, Pand. f 22. ^ Wms. Saiind. 217 5. 



170 NATURE AND SOURCES OF LAW 

the Court of King's Bench were equally divided on the 
question whether it did not extend to an action against a 
bailiff for allowing the escape of one arrested on meme 
process.^ 

Sbc. 879. But, on the other hand, it has been said over 
and over again, both in the Civil and in the Common Law, 
that the courts must not undertake to make the legislature 
say what it has not said. Is not the true rule that the 
judge should give to the words of a statute the meaning 
which they would have had, \f he had wed them hitmeif^ 
unless there be something in the circumstances which makes 
him believe that such was not the actual meaning of the 
legislature ? 

Sbc. 880. The most remarkable instance of the growth 
of Law by interpretation of statutes is to be found in the 
Roman Law. The Twelve Tables formed in theory the 
foundation of the Law, but they were so extended, limited, 
and altered by interpretation that they retained but little 
of their original force. ^^A formal setting aside of the 
Law of the Twelve Tables (as statute) by an altering cus- 
tomary law must have appeared inconceivable to a Roman 
of that time. Down to the end of the Roman legal devel- 
opment, down to the Corpus Juris Civilis of Justinian, 
that is, for a whole thousand years, when finally, for already 
a long period, no stone of the Law of the Twelve Tables 
stood upon another, yet in theory the legal authority of 
the Twelve Tables was still the source of the collected 
Roman Law. This corresponded to the conservative, and in 
all legal matters, far-seeing judgment of the Romans. No 
letter of the Twelve Tables was to be altered, and yet it 
was possible to read a new spirit into the old letters. After 

1 See Le Mason v. IHzon^ W. Jones, 178. 



STATUTES 171 

the completion of the legislation of the Twelve Tables, 
the questions dealt with were of an ^interpretation which 
developed^ yes, changed the Law, while it left the letters 
of the Law undisturbed." ^ 

Sec. 881. Perhaps the best way to illustrate how much 
statutes are at the mercy of the courts is to take some one 
statute, and to see how different courts have attributed to 
the legislature entirely different meaning^ so that the 
people of different countries are living under totally dif- 
ferent Law, although there be the same enactments on 
their respective statute-books. Let us select the Statute 
of Frauds, an Act which requires certain transactions to 
be in writing, and of this only one section, the fourth, 
which has generally been reenacted in much the same terms 
in the several United States. 

Seo. 882. The section is as follows : *^ No action shall 
be brought (1) whereby to charge any executor or ad- 
ministrator upon any special promise, to answer damages 
out of his own estate ; or (2) whereby to charge the de- 
fendant upon any special promise to answer for the debt, 
default, or miscarriage of another person ; or (8) to charge 
any person upon any agreement made upon consideration 
of marriage ; or (4) upon any contract or sale of land, 
tenements, or hereditaments, or any interest in or concern- 
ing them ; or (5) upon any agreement that is not to be 
performed within the space of one year from the making 
thereof; unless the agreement upon which such action 
shall be brought, or some memorandum or note thereof 
shall be in writing and signed by the party to be charged 
therewith, or by some person thereunto by him lawfully 
authorized." 

1 Sohm, Inst. ill. See 2 Ihering, Geist des r()m. Reohts, 461 et seq. 



172 NATURE AND SOURCES OF LAW 

Sec. 888. In some jurisdictions the courts interpret ^^ a 
special promise to answer for the debt, default, or miscar- 
riage of another person " as including a promise by A. to 
B. to indemnify the latter for becoming surety to C. In 
other jurisdictions the courts put the contrary construction 
on the provision. Again, some courts interpret this clause 
as covering an indorsement of a note before delivery by 
one not a party thereto. Others hold the other way. 
Some courts, again, interpret ^^ land " as including a crop 
of growing grass ; others do not. Some courts, further, 
interpret contracts *' not to be performed within a year " 
as contracts either side of which cannot be performed in a 
year, while others construe the words as meaning contracts 
of which the part to be performed by the defendant cannot 
be performed within a year ; and, so again, a memorandum 
in writing of an agreement is interpreted by some courts 
as meaning a memorandum containing not merely the 
promise but the consideration, while others interpret it as 
meaning a memorandum containing the promise only. 

Sec. 884. One more case to illustrate the power of the 
courts. In Maine and Massachusetts there is a statute re- 
quiring three competent witnesses to a will, and providing 
that any legacy to a witness shall be void. In each State 
arose a case where a will containing a gift to a man had 
been witnessed by his wife. The Maine Supreme Judicial 
Court interpreted the statute extensively, and held the 
legacy bad and the will good, while the Supreme Judicial 
Court in Massachusetts, interpreting the statute strictly, 
held the whole will bad. 

Sbo. 885. One thing, however, is clear, — when legis- 
lation is rare, and can be procured with difficulty, the 
judges will allow themselves a freedom in interpreting 



STATUTES 173 

statutes which they will not exercise when any ambiguous 
or defective statute can be easily remodelled by the Legisla- 
ture. The history of the Law shows this to be so^ and it 
is perhaps well that it should be so ; but for this reason 
the practice of the courts, when legislation is difficult, will 
form an imperfect index of what is or ought to be their 
practice when legislation is readily attainable. 

Sbo. 886. Perhaps the most striking instance in mod- 
em times of the freedom of interpretation exercised by a 
court to modify legislation which could be altered only 
with great difficulty, — indeed the last modem instance 
of a fiction which, in its barefaced character, seems a late 
survival of the practice of the early Roman praetors — is 
the doctrine of the Supreme Court of the United States 
on the right of corporations to sue in the Federal Courts. 
Had the question arisen under an Act of Congress, the 
Court would have left the difficulty which was felt to 
be dealt with by Congress, and not sought to mend an in- 
convenient state of affairs by a fiction ; but the question 
arose under the Constitution, which could be altered only 
with great trouble and elaborate machinery. The action 
of the Supreme Court furnishes an excellent example of 
the extent to which courts wiU go when they despair of 
the amendment of defective legislation. 

Sec. 887. The history of the matter is this : The Con- 
stitution provides that the judicial power of the United 
States ^ shall extend ... to controversies between citizens 
of different States," and under the statutes passed to give 
effect to this provision, it has been, from early times, uni- 
formly held that if there are citizens of the same State 
on opposite sides of a controversy, the jurisdiction of 
the Federal courts on the ground of citizenship is 



174 NATURE AND SOURCES OP LAW 

ousted.^ And it has also been held that a corporation is 
not a citizen of any State so as to be entitled to the 
privilege of citizenship.' 

Sbc. 388. In Hope Imuranee Co. v. Boardmanf it was 
held that a plaintiff described as a company incorporated 
by a State could not sue the citizens of another State 
under the clause in question, the plaintiff not being a 
citizen of any State. But this was followed in the same 
year by Bank of the United States y. Deveauxf in which 
the Supreme Court decided that a petition by a corpora- 
tion established by the United States which averred that 
the petitioners were citizens of Pennsylvania could be 
maintained in a Federal Court against citizens of Georgia. 
That is, the Court extended the meaning of citizen of a 
State in this clause to a corporation all of whose members 
were citizens of that State. 

Seg. 889. This was going a good way, but the court has 
gone much further, and now holds that the stockholders 
of a corporation will, for the purposes of jurisdiction, be 
conclusively presumed to be all citizens of that State by 
which the corporation was established, no evidence to the 
contrary being admissible. 

Seo. 890. This ruling leads to most extraordinary results. 
The Federal courts take cognizance of a suit by a stock- 
holder who is a citizen, say, of Kentucky, against the 
corporation in which he owns stock, which has been in- 
corporated, say, by Ohio. Since he is a stockholder of an 
Ohio corporation, the court conclusively presumes that he 

1 Strawbridge t. Ourii$$t 8 Cr. 267 (1806) ; Smyth t. /^yon, 183 U. 8. 
316 (1800). 

*Bank ofAugutta ▼. JTarla, 18 Pet 619 (1830) ; PsiiZ ▼. Virffinta, 8 
Wall. 168 (1868). * 6 Cr. 57 (1809). « lb. 61. 



STATUTES 175 

is a citizen of Ohio, but if he were a citizen of Ohio, he 
could not sue an Ohio corporation in the Federal courts. 
Therefore the court considers that he is and he is not at 
the same time a citizen of Ohio and it would have no 
jurisdiction unless it considered that he both was and 
was not at the same time a citizen both of Ohio and 
Kentucky.^ 

Sbo. 891. The special character of a particular body of 
legislation will sometimes call for special rules of inter- 
pretation. The most marked instance is to be found in 
the legislation of Justinian : the main parts of this, the 
Digest and the Code, are composed almost entirely of what 
was originally not legislation ; the Code is made up mainly 
of rescripts and decrees by the Emperors in particular 
cases, while the Digest contains some such rescripts 
and decrees, but is composed chiefly of extracts from the 
writings of jurists. In fact, therefore, to interpret rightly 
a passage in the Corpus Juris^ it is necessary first to con- 
sider what it meant as used by its original author, and 
then how that meaning has been modified by reason of 
the passage being incorporated into the Oarjm$^ where it 
has to be considered in connection with other passages 
which have also been appropriated by Justinian.* 

Sec. 892. It is obvious that in many ways a body of 
legislation thus made up must have its own rules of inter- 
pretation. For instance, when a statute declares that 
written instruments shall have a certain effect if made in 
a certain way, the arffumentum a cowtrario^ that instru- 
ments not so made will not have that effect, is much 
stronger than in the case of a judgment in which it has 

1 Dodge t. WooUe^, 18 How. 881 (1866). 

SI WlndBoheid, Pand. | 26; 1 Savigny, Heut. rOm. Recht, 81 42-40. 



176 NATURE AND SOURCES OP LAW 

been declared that an instrument so made shall have the 
effect in question. 

Sbo. 898. Whenever a code of laws is published and 
put forth as one new thing, it is to be interpreted very 
differently from a collection of statutes which is merely a 
revision and orderly arrangement of statutes already ex- 
isting. Of this latter sort are many, though not all, of 
the collections of statutes in the several States of the 
Union, and in them the original dates and context of the 
separate parts will influence the mode in which the courts 
construe their provisions. Any one familiar with the 
revisions of the statutes in any of the United States has 
had frequent proof of this.^ 

Seo. 894. The legislature can repeal a statute; it can 
pass a new statute saying what shall be the meaning of an 
old statute (although the new statute must be in turn in- 
terpreted by the courts), and it can, in the absence of any 
Constitutional prohibition, even make the new statute 
retroactive ; this is simply an instance of Its law-making 
power ; but how far have legislatures undertaken to re- 
serve to themselves the power, apart from new legislation, 
of interpreting statutes, a power which is ordinarily con- 
fided to the judicial organs of a community ? 

Seo. 896. Justinian forbade any commentaries to be 
written upon the product of his legislation and added : 
^* Si quid vera ambiguum fuerit vitum^ hoe ad imperiale cul- 
men per judices referatur et ex auctaritate Augusta mani- 
feitetur^ cm soli coneeeeumest leges et eondere et irUerpretari.^^^ 
If this provision was ever of any practical force, it forms 

1 See an article by Mr. H. W. Chaplin on Statutory Bevision, 8 Harvard 
Law Bey. 73. 

s Cod. 1, 17, 2, 21. See also Cod. 1, 14, 12. 



STATUTES 177 

no part of the Roman Law as received in the modern 
world.^ 

Seo. 896. So far as Sovereigns during the Middle Ages 
interfered with the decisions of the courts it would seem 
to have been as supreme judges rather than as legislators 
interpreting their own statutes. 

Sbo. 897. In countries where the English Common 
Law prevails, no references have ever been made by 
judicial tribunals to legislatures to furnish them with 
interpretations of statutes. In England and in some of 
the United States, legislative bodies can ask the opinion 
of the judges on the interpretation of statutes as on any 
other questions of Law, free to follow or not to follow, as 
they see fit, but the reverse practice does not exist. 

Seo. 898. The Prussian Code at one time directed the 
judges to submit their doubts on the interpretation of 
statutes to a legislative commission, but this has now 
been done away with, and the judges have full and ex- 
clusive powers of interpretation. 

Sec. 899. It is in France that the idea of reserving to 
the legislature the power of interpretation has been most 
developed. Its history is interesting, but it will be suf^ 
ficient to say here that, at present, the legislature is not 
charged with this judicial function. 

Sec. 400. Desuetude of Statutes. A statute once en- 
acted continues to be a source of law until it comes to an 
end. Sometimes a statute itself provides that it shall be 
in force for only a limited time. But the usual way in 
which a statute ceases to be a source of Law is its repeal 
by the legislature which enacted it or by a legislature of 
higher powers. A legislature cannot bind subsequent 

1 1 Windflcheid, Pand. 8 86 ; 1 Savigny, Heut. r5m. Becht, 1 49. 



178 NATURE AND SOURCES OF LAW 

legislatores, and therefore cannot pass an irrepealable 
statute. This is true of a supreme legislative body hay- 
ing an unlimited power of enacting statutes, but to an in- 
ferior legislative body may be delegated the power of 
making ordinances once for all, and when it has made 
them, it may h^functum officio ; and from the circumstance 
that the legislatures of the several States in the United 
States are limited by the Constitution of the United 
States has arisen another interesting class of statutes 
which the legislatures that passed them cannot repeal. 
That has come about in this way. The Constitution of 
the United States prohibits a State from passing any law 
impairing the obligation of contracts, and the prohibition 
was interpreted in the Dartmouth College Case to cover 
not only executory contracts, but also grants, and there- 
fore statutes of a State which are grants cannot be repealed 
by a subsequent legislature of that State. The statutes 
which have in this way become irrepealable are mainly 
those which have granted certain privileges, such as ex- 
emption from taxation, to corporations. 

Sec. 401. The Civilians base their doctrine as to abro- 
gation by desuetude upon a passage of the jurist Julianus, 
who flourished in the first half of the second century, 
which is taken up into the Digest.^ ^*' InveUrata eontuetuio 
pro lege nan immerito eustoditur^ et hoe eit itM quod dieitur 
moribue constitutum. Ham cum ipea leges nuila alia ex 
causa no$ teneant quam quod Judicio poptdi recepixB sunt^ 
merito et ea, qwB sine vllo scripto popuius probavit^ tenuerunt 
omnes ; nam quid inter eit wffragio popuius voluntatem mam 
declaret an rehue ipeis etfaetist Quare rectissime etiam 
iUud recqptum e$t^ ut leges nan solum suffragio legiskUorie^ 

ID. 1,8,82, 1. 



STATUTES 179 

9ed etiam taeito eoniemu omnium per deiuetudinem airih 
gentwr; " and there are other passages in the Oarptu Juri$ 
which seem to be to the same effect.^ On the other hand, 
a rescript of Constantino (a.d. 819)i to be found in the 
Code, reads as follows : ^ Oan$uetud%nU unuqtie langcm 
non vUu auetorita% e$t^ verum non usqtu adeo iui valitura 
mamento^ ut aut raUonem mneat aut legem,*^ * 

Sec. 402. On the attempted reconcilement of these 
passages, and on the existence and extent of the doctrine 
that statutes may be abrogated by disuse, there is a whole 
literature. Placentinus' taught that statutes could no 
longer be abrogated by disuse. But he has found few 
followers among the civilians. Of the divers theories 
held as to Constantino's rescript by those who allow that 
statutes may be abrogated by desuetude, Ouyet^ enumer- 
ates fourteen of the ^ weightiest," besides his own. 

Sbg. 408. One of these theories is that the doctrine of 
abrogation by desuetude should be confined to those 
statutes which provide what is to be done in transactions 
where the parties have expressed no will of their own 
(DUporitivgeBetze)^ and ought not to be extended to 
statutes which positively forbid or order certain acts. 
Thus, a statute directing that, in the absence of agree- 
ment, six per cent shall be the legal rate of interest can 
be abrogated by disuse, but a statute forbidding that 
more than six per cent shall be taken, cannot.^ But this 

1 Inst IV, 4, 7; Cod. 1, 17, 1, 10; Cod. VI, 61, 1, 1. 
« Cod. VIII, 62 (58), 2. 
s In his gloH to Cod. Vni, 62 (68), 2. 

« In an article on Da$ partieuUhre OewonMUreMf in 86 Aieh. fSr flif. 
Pr. 12, 28-26. 

• Seuffert, 11 Arch, fttr civ. Pr. 867. 



180 NATURE AND SOURCES OF LAW 

limitation of the power of abrogation by desuetude to the 
case of DitpositivgesetMe has not met general approval.^ 

Sec. 404. Abrogation by desuetude is not merely a 
doctrine of the schools, but has been applied in practice in 
modem times. Thus, the following case was decided in 
the Court of Appeals at Darmstadt in 1827. The defend- 
ant had alleged that the provision of the statute Liaw 
(the Land Law of the Upper County of Katzenelnbogeo} 
in relation to the formalities of a will had undergone 
modification through customary Law. When the question 
came before the Court of Appeals that tribunal held that 
the defendant should be allowed to prove the superiority 
of the customary Law which derogated from the provisions 
of the Land Law, for that through usage a positive statute 
could be abrogated or modified, and that this was good 
even in reference to the formalities for making wills.' 

Seo. 405. The practical use of a formal doctrine allow- 
ing the abrogation of statutes by desuetude is likely to be 
greatly limited by the freedom which the courts permit 
themselves to exorcise in interpretation. It is not as 
speedy or as simple a process to interpret a statute out of 
existence as to repeal it, but with time and patient skill it 
can often be done. And the desire not to seem to disturb 
ancient landmarks has often occasioned a resort to ** inter- 
pretation" rather than to a repeal to get rid of the weight 
of a statute which has become burdensome. Particularly 
was this the case in Rome. Referring again to the pas- 

1 See 2 Paohta, Oewonheitsreoht, 208, 900 ; Biuoh, 27 Arch. fOr oiv. 
Pr. 107. On the question of desuetude, see also Windscheid, Pand. § 18 ; 
2 Puchte, Gewonheitsreoht, 208-215; 1 Savigny, Heut rOm. Becht, §25; 
Id. Beyla«e 2 ; Gesterding, 8 Aroh. fUr civ. Pr. 250. 

s Seoffeit, Aroh. Nr. 8 ; see also 40 Senffert, Aroh. Nr. 200. 



STATUTES 181 

sage from Sohm^ a formal repeal of the Law of the Twelve 
Tables by customary Law would have appeared inconceiv- 
able to a Roman, and when for a long period no stone of 
the Law of the Twelve Tables stood upon another, still, 
in theory, that legislation was regarded as the source of 
the collected Roman Law.' 

Seo. 406. Another circumstance which affects the prac- 
tical employment of the doctrine of desuetude is the com- 
parative ease of obtaining new legislation ; when the 
legislative organ of a community is with difficulty called 
into action, the courts are pretty certain, whatever legal 
texts may say, to exercise the power of either interpreting 
statutes out of existence, or else of holding that they may 
be abrogated by desuetude. But when new legislation 
can be easily obtained, there is little occasion to apply the 
doctrine of desuetude. 

Sec. 407. Many of the German Codes provide that no 
customary law shall prevail against them. But some of 
the German jurists go so far as to declare that an express 
provision in a statute that it should not be abrogated by 
any customary law would be null and only empty words.' 
Windscheid, while condemning this view, adopts one which 
leads to the same result. He says that if a statute denies 
derogatory power to customary law, that provision of the 
statute is valid, and that, as long as the statute is in force, 
it must prevail against customary law, but that, notwith- 

1 Cited Sec. 380, ante. 

s But see Inst IV, 4, 7, which aeems to recognise that a proyidoii 
of the Law of the Twelve Tables could be abrogated by demietade. 

• See Zoll, 18 Jahrb. f. Dogm. 416 (1874): Maurer, 14 Krit Viertel- 
jahraachr. 49 (1872) ; Eiaele, 69 Arohiv f. civ. Pr. 276 (1886) ; Wendt, 
22 Jahrb. f . Dogm. 824 (1884). 



182 NATURE AND SOURCES OF LAW 

standing, the statute itself may be derogated from by 
customary law.^ 

Sbo. 408. In France,* the prevailing opinion is that 
statutes cannot be abrogated by desuetude.* 

Sbo. 409. In Scotland statutes may fall into desuetude, 

Sbo. 410. The doctrine of the English Common Liaw 
is that a statute can be abrogated only by an express or 
implied repeal that it cannot be done away with by any 
custom or usage, that it cannot fall into desuetude. 

Seo. 411. To the rule that a statute cannot fall into 
desuetude, Lord Coke seems to allege an exception. His 
words ^ are, ^* If a statute in the negative be declarative of 
the ancient Law, that is, in affirmance of the Common 
Law, there, as well as a man may prescribe or allege a 
custom against the Common Law, a man may do against 
such a statute*'; and Mr. Hargrave approves the rule 
that one may prescribe or allege a custom against a stat- 
ute declaratory of the Common Law. But the truth 
seems to be that there are no statutes having force as such 
which are older than the time of legal memory,* and that, 
therefore, all rights acquired by prescription or custom 
are to be considered as existing before any statutes were 
enacted. So that the question is this : Is a custom or 
prescription contrary to the Common Law put an end to 
by a statute confirmatory of the Common Law passed sub- 
sequently to the establishment of the custom or prescript 

1 1 Windaoheid, Fand. (Tth ed.) 1 18, note 8. See Bnmelin, S7 Jahrb. 
f . Dogm. 225 (1880) ; 1 Stobbe, Handboch, f 28. 

s Aubry and Ran, Coun de Droit Civil inoQaSa, Tom. 1, 1 20. 

s See 6 Meri. Quest, de Droit, Sooi^ 1 1; 18 Meri. Bep. 266 el Mg. 

«Co. Lit. 115 a. 

• See Hale, Hiat Com. Law, c. 1. 



STATUTES 183 

tion ? In other wordsi the question is not of the effect of 
prescription or custom on a statute, but of the effect of a 
statute upon an existing prescriptive or customary right, 
which is merely a question of interpretation, and does not 
concern us here. 

Sec. 412. The theory that a statute cannot fall out of 
use is undoubtedly accepted law in England to-day, and 
the ease with which legislation can now be obtained ren- 
ders the maintenance of such a theory easy. But it is 
not perfectly clear that the doctrine was always held with 
great rigidity. St. 16 Hen. VI. c. 4 is to the effect that 
^^no writ of 9ubpiBna be granted from henceforth until 
surety be found to satisfy the party so grieved and vexed 
for his damages and expenses." This statute was, after a 
time, totally disregarded in the Chancery.^ It may be 
observed that this statute was passed to diminish recourse 
to Chancery, and must have been disliked by the officers 
of that court, and that if the Chancellor disregarded the 
statute, he could not be proceeded against at Common Law 
either by mandamiu or prohibition. It may also be noted 
that the statute is not in any of the exemplifications 
formerly preserved at the Tower of the lost statute roll of 
this year.* 

Sec. 418. The St. of I Hen. V. c. 1, requiring candi- 
dates for Parliament to be resident within the counties, 
cities, or boroughs from which they are chosen, and other 
statutes in the following reign in pari materia? were not 
followed by the House of Commons ; and in 1774, the St. 
of 14 Geo. III. e. 68, after reciting that ^ several provi- 

1 1 Harriflon, Pno. Ch. (8th ed.) 167. 

s 2 Sta. of the Beahn (ed. 1816) 296, note. 

• Sts. 8 Hen. VL c. 7, 10 Hen. VI. c. 2, 28 Hen. VI. c 16. 



iSi NATURE AND SOURCES OF LAW 

sions contained in the said Acta have been found, by long 
usage, to be unnecessary, and are become obsolete," en* 
acted that, in order ^ to obviate all doubts that may arise 
upon the same,'^ the said Acts are repealed. It should be 
observed that most of the acts forbidden by these statutes 
could be taken cognizance of only by the House of Com- 
mons, and therefore would escape the supervision of the 
regular courts. 

Sbo. 414. Near the beginning of the seventeenth cen- 
tury, Ferdinando Pulton published a calendar abridg- 
ment of the Statutes, in which he marked by the letters 
«<0B*' every statute which was ^i^soletumy that is, worn 
out of use/' 

Sbo. 415. The St. of 19 & 20 Vict. e. 64 (1856) is en- 
titled ** An act to repeal certain statutes which are not in 
use." It repeals one hundred and eighteen Acts, and it 
is to be observed that it is only in the preamble that it 
speaks of the statutes not being in use.^ 

Sbo. 416. The English statute book has undergone a 
pretty thorough purging from Acts applicable only to a 
state of things which has passed away. For instance, be- 
tween the Restoration of 1660 and the Revolution of 1689 
there were passed two hundred and seventeen statutes 
(omitting the private, personal, and local). Of these, one 
hundred and seventy-five have been expressly and totally 
repealed, and doubtless the judges would be astute in 
searching for, and successful in finding, implied repeals 
of other statutes that they did not like. 

Seo. 417. The position among the English colonists in 
what is now the United States of the statutes passed 
by the English or British Parliament, whether before 

iSee alflo St. 26 & 27 Vict. c. 125. 



STATUTES 185 

or after their departure from the mother country pre- 
sents an interesting question. Undoubtedly the prin- 
ciples embodied in those statutes were largely applied 
as rules by the American courts, but they were applied 
not as commands of the English or British Parliament, 
for no Acts of Parliament extended to the colonies un- 
less they were expressly mentioned,^ but as part of a 
body of rules, known as the Common Law, which were, 
in fact, applied by the English courts, and which the 
courts in the colonies took over from them; and they 
dealt with these rules much more freely than they would 
have felt at liberty to do, had the statutes been made 
by the legislatures of their own communities. They said 
that they would consider as furnishing rules for decision 
only those English statutes which were *^ suited to our 
condition," a phrase giving them a wide discretion, of 
which they did not hesitate to avail themselves, and 
there was, therefore, no occasion to consider the effect of 
desuetude on true statutes. 

Sec. 418. In South Carolina, indeed, an Act of the 
General Assembly of the Province, passed in 1712, pro- 
vided that certain Acts of Parliament, set forth at length, 
should be in full force and virtue as if the same had been 
specially enacted and made for the Province, or as if the 
same had been made and enacted therein by any General 
Assembly thereof. But in no other colony or province 
was there a local reenactment of English statutes. 

1 Between the date of the first establishment of the American colonies 
in the beginning of the seyenteenth century and the Revolution at the 
end of the eighteenth, the statutes passed by the Parliament of England 
or of Great Britain, which were made applicable to the colonies or any of 
them, were few in number. 



186 NATURE AND SOURCES OF LAW 

Sbo. 419. There does not seem often to have come up 
any question of the desuetude of the statutes of the United 
States or of the several States. I suppose that the courts 
would generally follow the English doctrine that a statute 
cannot be abrogated by desuetude ; but, doubtless, if they 
found a statute troublesome as a ^^ survival of the unfittest,*' 
they could do much to get rid of it by ^ interpretation,'' 
or by declaring it the victim of an ^^ implied repeal." 
The only States in which the question has been discussed 
seem to be South Carolina, Pennsylvania, Maryland, and 
Iowa.* 

1 See Appendix vm. 



CHAPTER IX 



JUDIOIAL PBEOEDBKTS 



Sbo. 420. The second source of the Law, that is, of the 
rules by which the courts govern their action, is to be 
found in Precedents. Precedent has a very wide mean- 
ing. It covers everything said or done which furnishes a 
rule for subsequent practice, especially in matters of form 
or ceremony. Thus, at the Lord Mayor's Election Din- 
ner, it is a precedent that ^^upon the Lady Mayoress 
retiring from the dinner table the senior alderman below 
the chair conducts Her Ladyship to the drawing-room " ; 
and in the Law, ^^ precedent" is often used to mean a 
paper employed as a model in drawing other papers ; 
thus, we have precedents in conveyancing and pleading ; 
but the precedents of which we have to speak herp^udi- 
cial Precedents, are former decisions which courts respect 
and follow because made by judicial tribunals. 

Sec. 421. As the weight attached to precedents in every 
department of life is closely connected with the force of 
habit, and has its roots deep in human nature, it is more 
than probable that Judicial Precedents have exercised great 
influence in all systems of Law ; the feeling that a rule is 
morally right has often arisen from the fact that it has 
long been followed as a rule ; but the degree in which 
judicial decisions have been openly recogfuized as authori- 
tative, simply because they are judicial decisions, has 

187 



188 NATURE AND SOURCES OF LAW 

varied very greatly in different systems. Judges are every- 
where largely influenced by what has been done by them- 
selves or their predecessors, but the theories to explain 
and control such influence have been diverse, and the de- 
velopment of the Law has not been unaffected by them. 
Seo. 422. Two things should be borne in mind. In 
the first place, the functions of courts are not in nractice 
confined to the decision of particular causes. "iSither by 
authority expressly delegated, or of their own motion, 
courts have undertaken to legislate with regard to the 
conduct of litigation before themselves ; they have pub- 
lished general rules, in the form of command or permission, 
setting forth the manner in which they will proceed. The 
most striking example is the Edict of the Roman praetor, 
which became a chief instrument in the development of 
the Roman Law. Doubtless special cases gave rise to 
many of its provisions, but, none the less, it was in form 
a legislative, not a judicial, act. The Scotch Court of 
Sessions, in its Acts of Sederunt, assumed extensive pow- 
ers of enacting laws, and in our days, governments have 
frequently intrusted to courts a wide authority to make 
rules of procedure. All this lies outside of our present 
limits. Such rules are not Judicial Precedents. 

Sec. 428. Again, the peculiar quality and effect of a 
Judicial Precedent as a source of Law should be noted. 
^ may be a source of Law as expressing the opinion of 
learned men, or as stating sound moral doctrine';|^but its 
peculiar force as a Judicial Precedent does not lie in its 
accordance withythe opinion of the learned, or in the fact 
that it is right rit is a Judicial Precedent, not because it 
auffht to have been made, but because it Jms been made. 
The decision of a court may unite the character of a Judi* 



JUDICIAL PRECEDENTS 189 

cial Precedent with the character of an expression of wise 
thought or of sound morals, but often these characters are 
separated. To go no farther than our own Law, there is 
no difficulty in finding decisions standing as precedents, 
at which, like the Rule in Dumpor's Case, ^^ the profession 
have always wondered,'* or which, at any rate, are no ex- 
pression of present opinion and would never be made for 
the first time to-day. 

Sec. 424. Roman Law. Of Judicial Precedents as a 
source of Law, we find nothing in the time of the Repub- 
lic, except so far as the rulings of the Pontifical College 
had this character. The manner in which the pantificea 
intervened in lawsuits between individuals is very obscure, 
but there is reason to believe that their position was an 
authoritative one, and it is likely enough that in the ar- 
chives of the college were recorded decisions which they 
followed as binding precedents;^ but this remains largely a 
matter of conjecture.^ At any rate, before the end of the 
Republic, their power of controlling litigation appears to 
have greatly diminished, and the practice of giving opin- 
ions had passed to the unofficial body of jurisconsults,yum- 
prudenteSj who seem to have enjoyed great public consid- 
eration; but the opinions of these jurisconsults, however 
worthy of respect, were not binding on the magistrates and 
judges. The jurisconsults did not form a judicial body. 

Sec. 425. But Augustus gave to certain persons ^im re- 
spondendi by the authority of the Emperor.' All that we 

1 Esmarch, ROm. Rechtsgeschichte, f 44. 

* Ibering, 1 GeUt des r5m. Rechts, 1 18 a. 

* The common opinion has been that the responsa of these persons were 
made binding upon the courts by Augostus, but some writers think that 
it was Hadrian who first gave them this binding cliaracter. 



190 NATURE AND SOURCES OF LAW 

know of the ju% respondendi is contained in three passages.^ 
These three passages have called forth much comment, and 
given birth to many theories.^ 

Sbo. 426. From our present point of view the impor- 
tant question is, whether the respansa of those juriscon- 
sults who had the Jtis respondendi were of effect only in 
the particular case in which they were given, or whether 
they were obligatory upon the courts as precedents in 
later cases. The probable opinion appears to be that 
they had the character of true Judicial Precedents. 

Sec. 427. By the time of Diocletian (a.d. 284-805) 
the jvA re9pondendi seems to have ceased to be given, and, 
gradually, all the writings of the great jurists of the 
earlier years of the Empire came to be considered as au- 
thorities, without any distinction being made between 
their responsa and their treatises. It was as if Judge 
Story's judgments and treatises were to be considered 
of like weight. The power of adding to the Law or of 
modifying it by judicial decisions had passed away. The 
Law, like the Empire, had reached a period of degrada- 
tion and sterility. It had no vitality, and could only 
nourish itself indiscriminately on the past.^ 

iDig. 1,2,2,49; Gai.1,7; Inst I, 2, 8 e( 9. 

'See Glasson, £tade ^ Gaius, 84-119. 

s ** The writings of jurists who had not possessed the jus respondendi 
were cited as entitled to an authority in no way inferior to that of the 
writings of privileged jurists, provided only they were supported by the 
same literary prestige which distinguished the writings of the illustrious 
privileged jurists. . . .* Considering that, in the case of the privileged 
jurists, their other writings, which, of course, had nothing to do with their 
jus respondendii were ranked on a par with the responsa, it was altogether 
absurd to insist on the jus respondendi as a condition of judicial authority. 
The practice of not discriminating between the different kinds of writings 
necessarily led to the practice ot not discriminating between the authors 



JUDICIAL PRECEDENTS 191 

Sec. 428. Such was the state of things when Justinian 
began his legislation. But before speaking of this, we 
must consider another class of judicial utterances — those 
emanating from the Emperors themselves. The legal 
utterances of the Emperors were of two kinds, legislative 
and judicial. They were all classed together as corMtitu- 
tiones. Of the legislative sorts were the edicta and man- 
data; it is unnecessary here to consider their special 
character ; they were in their nature statutes. 

Sec. 429. The judicial acts of the Emperor were decreta 
and rescripta. The decreta were decrees, final or inter- 
locutory, in a cause. The rescripta were letters sent to 
the judge or to a party in a suit, giving the decision 
which ought to be rendered. There seems to have been 
no substantial difference in their effect upon a suit ; un- 
questionably they were alike obligatory upon the judges 
in the cases in which they were given. But the question 
arises, as with the respansa prydentiumy were they binding 
as precedents ? 

Sec. 430. First, as to Decreta. That in the classical 
period of the Roman Law decreta had sometimes at least 
the force of precedents, seems the more probable opinion ; 
Justinian^ says that the binding force as precedents of 
the Imperial decrees had been doubted by some, adding, 
** vanam scrupulositatem tarn risimuB quam corrigendam esse 
censuimus ; " and he declared that a decree made by the 
Emperor in a cause should be a rule (lex) not only in that 
cause, sed omnibus similibus. 

themBelTes — which Ib only another way of saying that the transfer of the 
authority of the responaa to literature had become an accomplished fact.'* 
8ohm, Institutes, f 17 ; see also the Law of Citations (▲.d. 426), Cod. Theod. 
I, 4, 8 ; see. 662, pott. i Cod. I, 14, 12. 



192 NATURE AND SOURCES OF LAW 

Sbo. 431. Secondly, as to Bescripta^ with their sub- 
yarieties ot adnotationes^ mibscriptioneSj episttUoe^ pragmatioce 
8anctiones. These, as I have said (though the word may 
have been sometimes nsed more loosely) were answers to 
requests of a party or of the judge in a suit for instructions 
how the case should be decided. These rescripts were 
obligatory on the court in that suit. Originally they 
seem, in some cases at least, to have been binding as 
precedents.^ 

Sec. 432. The danger which there was that a case would 
not be fully or fairly presented to the Emperor brought 
rescripts into disfavor. Trajan (a.d. 98-117) is said to 
have refused to issue rescripts in answer to requests, ^^ne 
ad alias catisas facta prcrferrentur^ qwB ad graiiam cam- 
posita viderentur^^^ and Macrinus (A.D. 217, 218), refer- 
ring to this, enacted, ** omnia rescripta veterum Principum 
tollere^ utjure^ non re%cripti%^ ageretur^'* saying, "n«/a« e%%e 
leges videri Oammodi et OaracaUi et hominum imperitorum 
voluntatesJ^^ Still later, it was ordered by Arcadius and 
Honorius (A.d. 898) that rescripts should not be re- 
garded as precedents; and they were forbidden by Jus- 
tinian (541).« 

Seo. 433. The idea of Judicial Precedent was therefore 
familiar to the Roman Law, at least at some periods of its 
development. 

Sec. 434. The form of Justinian's Digest was peculiar : 
a mass composed of the decisions of judges and the opin- 
ions of jurisconsults in particular cases was taken up 
bodily into it and enacted as a statute ; but in spite of 
this, it was impossible, in interpreting them, to treat 

1 Krttger, Qaellen, § 14, pp. 07, 08. 
a 1 Savigny, Heat. rdm. Recht, § 24. 



JUDICIAL PRECEDENTS 193 

them as if they had been enunciated in the usual statu- 
tory form; they had to be dealt with as if they were 
precedents, and the mode of reasoning adopted in their 
exposition had, to a considerable extent, to be that appli- 
cable to precedents ; and it would have been well if this 
had been carried to a greater extent. 

Sbg. 435. A similar state of things is to be found in 
the Codes passed by the Legislative Council of India for 
that country. Macaulay set the example, which has been 
followed by his successors, of inserting illustrative cases 
in the body of the statutes. The character of such parts of 
the Law, their resemblance and their difference to cases 
decided in the courts, are well given in the introduction 
of Macaulay to his Criminal Code.^ 

Sbg. 436. Q-erman Law. In Germany during the Mid- 
dle Ages the Courts were composed of a judge (Richter) 
and Schoffen. The Richter presided, kept order, and 
gave judgment, but on a doubtful point of law he took 
the opinion of the Schoffen, who were the Urtheiler, and 
often the Schoffen sought the opinion of the Schoffen of 
another city or town, either because of their reputation 
as depositaries of the Law, or because such city or town 
stood in the relation of mother city to that from which 
the request came.^ 

Sbc. 437. The opinions of the Schoffen were generally 

1 Cited 1 Stokes, Anglo-Indian Codes, zziy et seq. 

* The court to whoee Sch5ffen the request was sent was called the 
Oberhof , but the relation was not at all the same as that which prevails 
between a court of first instance and the appellate court, for the Schdffen 
of the Oberhof were not bound to answer. See 1 Stobbe, Geschichte d. 
deutsch. Rechtsquellen, f 27 ; 1 Planck, Deutsche Gerichtsverfahren im 
Mittelalter, §f 1&-19, 48 ; Gaupp, Das alte Magdeburgische und HalUsche 
Becht; Schultze, Friyatrecht und Process, §§ 0-14. 



196 NATURE AND SOURCES OF LAW 

D. Many judicial usages have in this way come grad- 
ually to be accepted and practised, notwithstanding they 
have met with theoretical disapproval; that again 

E. On the other hand, on account simply of their real 
excellence, in so far as they by means of this have acquired 
not only a hold in approved courts, but also the approval 
of theorists, and, on the theory that for cases not provided 
for in the statutes, they give the rules of decision which 
best correspond to the presumptive will of the legislature, 
many of these judicial usages become pretty generally 
recognized legal principles which cannot be left out of 
account. The fact that the legislature prescribes no other 
rules for future cases may be considered an approval of 
them by the legislature ; that finally, 

F. The lower courts act in accordance with the will of 
the legislature, if they follow the clear usage of the higher 
courts, although they are not bound to do so absolutely, 
but are only held to such following so far as they find it 
grounded in the will of the legislature according to their 
own examination, from which they are never excused. 

Sec. 441. Later writers seem generally to deny that 
Gf-erichtsgebrauch is a source of Law at all, and consider 
judicial decisions to be merely evidence (just as many other 
things might be evidence) of Customary Law. This 
seems to have been Savig^y's opinion.^ Such are the 
views of Wachter ; * and of Keller.' So Stobbe,* " Prac- 
tice is in itself not a source of Law ; a court can depart 
from its former practice, and no court is bound to the 

^ See 1 Heut rom. Becht, §20. 

« 23 Arch, f . civ. Pr. 432. 

s In his Fandekten, § 4. 

« 1 Handb. d. deatsch. Privatrechts, |24, p. 166. 



JUDICIAL PRECEDENTS 197 

practice of another. Departure from the practice hith- 
erto observed is not only permitted but required, if there 
are better reasons for another treatment of the question 
of Law," 

Seo. 442. Dernburg is the only recent author whom I 
have observed fairly to admit that GeriehUgehraueh is a 
source of law ; and even he says, ^* Single decisions of a 
court, even of the highest, do not make Q-eriehUgebrauch^^ 
which he defines as *^ the general, uniform, and long-con- 
tinued exercise of a legal tenet by the courts of the 
country." ^ 

Sec. 443. Nor are these views as to Geriehtagebraueh 
confined to the text-writers. They are shared by the 
courts themselves. As is shown, for instance, by an inter- 
esting decision of the Imperial Court.^ In New Hither 
Pomerania there had for a long time prevailed a doctrine 
of the courts (Q-eriehUgehraueK)^ supported by decisions of 
the earlier Tribunal in Wismar and of the later Oberap- 
pellationsgericht in Greifswald, and recognized as binding 
by the Prussian Obertribunal, that discontinuous servi- 
tudes are not acquired by a ten or twenty years* user, but 
only by immemorial prescription. The Imperial Court 
reversed a judgment founded on this view, on the ground 
that the doctrine was not based upon rules peculiar to the 
law of the special locality, but upon an erroneous inter- 
pretation of the Roman Law.' 

Sec. 444. One point especially in the views of the 

1 1 Dembuig, Pand. f 20. 

s 8 Entacheldungen des Reichsgerichte. CivUsachen, Nr. 60, p^ 210; & C. 
as Seuffert, Arch. Nr. 264, p. 886 (1880). 

s See another case, 7 Entsoheid. d. Beichag. Civil. Nr. 60, p. 164 ; S. P. 
40 Seut Aroh.Nr. 86, p. 180. 



198 NATURE AND SOUBCES OF LAW 

German writers seems very strange to those brought 
up in a different school. To a Common Law lawyer, the 
duty of a lower court to follow the precedents set by the 
court of appeal seems one of the clearest of judicial obli- 
gations. To delay a party of what will be declared his 
right in the end and to put him to the expense and trouble 
of an appeal seems wrong ; but the German writers are all 
express in denying the duty of following the precedents 
set by the court of appeal, even Thibaut ^ conceding that 
the upper courts bind the lower only so far as an earlier 
practice has not established itself in the latter. And 
Maurenbrecher, who at one time held the contrary,* ap- 
pears to have weakened on his first statement. Gengler 
is the only writer cited by Stobbe as maintaining uncon- 
ditionally the duty of following the precedents set by an 
upper court. 

Sec. 445. At various times and places in Germany 
statutes have been passed on this subject ; some of the 
statutes direct that courts shall follow their own prece- 
dents, and others that decisions of the highest court shall 
be followed by the lower courts. An account of several 
of these statutes will be found in Stobbe.' And that 
practically Gf-erichtsgebrauch is having an increased influ- 
ence on the development of German Law is shown by the 
increasing publication of decisions of the courts, which 
in England has gone on for hundreds of years, but in 
Germany began only in the latter part of the nineteenth 
century. 

Sec. 446. France. In France, as in Germany, it 
would seem that decisions of courts are not binding prec- 

1 Lac cU, § iSO, ante, < See 1 Stobbe, Handb. § 24, p. 166. 

s 1 Handb. § 24, pp. 165-168. 



JUDICIAL PRECEDENTS 199 

edents, even on inferior courts. Collections of decisions 
have, however, been for a long time published in France 
and are cited by counsel and judges. 

Sec. 447. Scotland. In Scotland the position assigned 
to Judicial Precedents appears to be intermediate between 
that occupied by them on the Continent and that to which 
they are raised in England. The example of the courts, 
and indeed the whole tone of the Law, in England, may 
have had an influence in elevating the reliance on prec- 
edents as it is now found in Scotland beyond the condi- 
tion in which we find it on the Continent, and the power 
given to the Court of Session to formally legislate by 
means of Acts of Sederunt, may have aided in giving 
weight to their expressed judgment in litigated cases. 
On the other hand, the fact that the court of ultimate 
appeal, the House of Lords, was a tribunal composed en- 
tirely of English judges, for I believe no one was ever 
called from the Scotch bench or bar to the House of Lords 
until the Appellate Jurisdiction Act of 1876, and the 
irritation which prevailed in Scotland over this state of 
affairs has had probably considerable effect in maintain- 
ing the view that precedents do not make Law, which 
seems to have prevailed in the earlier times. 

Sec. 448. England. In England, and in the countries 
where the English Common Law prevails, a very different 
theory as to Judicial Precedents exists. 

While on the Continent of Europe jurists have insisted 
and still insist that a decision by a court has, apart from 
its intrinsic merit, no binding force on a judicial tribunal, 
even on a tribunal from which an appeal lies to the court 
rendering the decision, it is Law in England and in the 
United States that, apart from its intrinsic merits, the 



200 NATURE AND SOURCES OF LAW 

decision of a court is of great weight in that court and all 
coordinate courts in the same jurisdiction, and that it is 
absolutely binding on all inferior courts. 

Sec. 449. The cause of this distinction between the 
English and the Continental Law is one of the unsolved 
problems of Comparative Jurisprudence. Is it due to a 
difference in race, or in political organization, or to the 
presence on the Continent of the systematic body of the 
Roman Law? Apparently, there was originally in the 
English Law no special regard for Judicial Precedents. 
If there had been, there would be more traces to be found 
of it in the earlier treatises and reports. 

Sec. 450. Glanville, who was probably the real author 
of the Tractatus de Legibus^ commonly attributed to him, 
died in 1190. There appears to be but one reference 
in his treatise to decisions of the courts.^ 

Sec. 451. Bracton's treatise, De LegUms et Con%uetur 
dinibuB AngluB^ was written in the middle of the thir- 
teenth century. Bracton is an exception to what had 
gone before, and what came after, his time. He abounds 
in references to cases. But Mr. Maitland, in his remark- 
able book, has shown that, with trifling exceptions, the 
cases cited by Bracton were all decided at courts in which 
Martin PateshuU and William Raleigh were judges.' ** His 
is a treatise on English Law, as administered by Pateshull 
and Raleigh." « 

Sec. 452. The exceptional character of Bracton is 
shown by the later history of the Law. Fleta, which was 
written towards the end of the thirteenth century, was 

1 It will be found in Book VII, o. 1. 

i 1 Maitland, Bracton's Notebook, 40, 46, 48, el <eg. 

»Id. §60. 



JUDICIAL PRECEDENTS 201 

largely drawn from Bracton, but in only one chapter does 
it, so far as I have observed, refer to particular decisions; 
in this chapter, which is the third of the second book, 
there are three cases as to the jurisdiction of the Steward of 
the King's Court when the King was out of England, two 
of them being in Gascony and one in Paris ; the last being 
a decision of the French King's Council, that the King of 
England had jurisdiction over Ingelramus caught in the 
English King's hotel with stolen goods ; Ingelramus was 
tried before the Steward and ^^ auapenstu in patibulo SancH 
Germani de PratuJ*^ 

Sec. 453. Britton also wrote about the close of the 
thirteenth century, and his treatise was in like manner 
taken to a great extent from Bracton, but there appears 
to be no reference whatever in it to any decision of the 
courts. 

Sec. 454. As to the two legal treatises of the fifteenth 
century : in Fortescue, De Lavdibua Legum Anglice^ there 
is no reference to any decided case ; and in the original 
text of Littleton's Treatise on Tenures of seven hundred 
and forty-nine sections, some ten cases only are referred to. 

Sec. 455. The first of the long series of reports which 
have been printed begins in 1292. Professor Maitland, 
whose recent death we deplore, the greatest historian 
whom the English Law has ever had, has shown, almost 
to demonstration, that the Year Books were not authori- 
tative collections of cases to serve as precedents, but were 
the notebooks of students under the bar, apprentices, as 
they were called. What Professor Maitland says is so 
interesting that I will quote at length from his Introduc- 
tion to the Third Volume of the Year Book Series of the 
Selden Society.^ 



202 NATURfi AND SOURCES OF LAW 

^^The term *Law Reports' inevitably suggests to us 
books that are to be cited in court. It is true that our 
modern reports serve more purposes than one. They have 
an educational value. Young men will read them in order 
to learn the law, and older men will read them in order to 
amplify their knowledge. Still on the whole we might 
say that to serve as * authority,' to be the base of judgments 
and of * opinions' that should forestall judgments, is in 
our own time the final cause of the report. Now, when 
we turn to these earliest Year Books, this final cause seems 
to fall far into the background and almost to vanish. If 
these books themselves prove anything, they prove that 
they are rarely, if ever, cited by counsel or justices. The 
voucher of a precedent is, to all appearance, an uncommon 
event. We shall hardly find more than a couple of in- 
stances in any one time; and when the voucher comes, it 
looks much more like a personal reminiscence than a ref- 
erence to a book. It will begin with *I saw,' or *I 
remember,' or * Don't you remember,' and when Chief 
Justice Beresford recalls a case in this way, the reporters 
do their best to write down the tale that he tells, for it is 
unknown to them, but memorable. No contrast could be 
stronger than that which we find between these vague 
vouchers, if vouchers they may be called, and Bracton's 
precise citations of cases that stand upon the plea rolls. 
Having regard to what Bracton did, we may indeed 
say that already in his time the English Common 
Law showed a strong natural inclination to become 
the *case law' that it ultimately became; but free 
access to the records of the Court being impossible, a 
long period seems to elapse before this tendency can 
prevail." 



JUDICIAL PRECEDENTS 203 

Sec. 456. And in a later place of the same Introduo- 
tion, Professor Maitland adds:^ — 

^* And let us not explain this by saying that the men of 
the time could do no better. On the contrary, we must 
remember that the educated men of the time were great 
citators of * authorities.' The medieval scholar, were he 
divine, philosopher, canonist or civilian, could give you a 
text for everything, and a text that you could find with- 
out much labor, if you had a copy of the book to which he 
referred." 

Sec. 457. I have gone down through the time covered 
by the Tear Books, taking the cases of a whole year at 
intervals of fifty years, and the result quite bears out 
the accuracy of Professor Maitland's statement as to the 
scarcity of the references to judicial decisions. In the 
later years they are slightly increased, but only slightly. 

Sec. 458. Coming down a generation after the close 
of the Tear Books, we find one of the most famous and 
accurate of reporters, and one of those who reports what 
passes in court at the greatest length, Plowden. Taking 
the first ten cases in his second part, we find they occupy 
seventy-four quarto folios, or, leaving out the pleadings, 
which Plowden gives at length, over fifty folios, or one 
hundred pages. An examination of the use of precedents 
shows that about thirty cases are cited and stated as 
authority by court or counsel. 

Sec. 459. It must be remarked that in other reporters 
of about the same period a somewhat larger number of 
references will be found, but, with every allowance, the 
contrast between all or any of the earlier reporters and 
Lord Coke is enormous, for with Lord Coke the citation of 



204 NATURE AND SOURCES OF LAW 

cases reached a height which it has neyer equalled since. 
Opening in the middle of his reports, we find in the 
first twenty-five folios of the seyenth volume two hundred 
and forty citations of cases, or sixteen times as many as in 
Plowden. And although English judges and lawyers 
of modem times are not so prolific in their citations as 
Lord Coke, the weight attached to precedents has not 
diminished since his time. 

Seo. 460. There are four questions under the English 
Law as to Precedents to consider : — 

1. How great is the authority of a decision in the 

court which made it, or in a court of coordinate 
jurisdiction ? 

2. Is there any court which is absolutely bound by its 

own decisions ? 
8. Does a lower court ever decide in opposition to a 

higher court of appeal ? 
4. Can decisions of the courts be properly considered as 

sources of Law ? 

Seo. 461. First It is impossible to answer the first 
question with precision ; precedents, in the English Law, 
have great weight but they have not irresistible weight ; 
decisions can, I mean can according to the theory of the 
English Law, be overruled or not followed. Any attempt 
at a more exact determination would simply be a theory of 
the particular writer as to what would be desirable rules, 
and not as to what rules do in fact actually govern. The 
best statement of the circumstances which add to or di- 
minish the weight of precedents is to be found in Ram on 
Judgments. The fact that precedents in the English Law 
are to be generally but not altaage followed, and that no 



JUDICIAL PRECEDENTS 205 

rules have been, or apparently ever can be, laid down to 
determine the matter precisely, shows how largely the Law 
in England is the creation of the judges, for they not only 
make precedents, but determine when the precedents shall 
be departed from. 

Sec. 462. Second. The only English court which is 
absolutely bouod by its own prior decision is the highest, 
the House of Lords.^ No such doctrine governs, however, 
the Judicial Committee of the Privy Council, which is also 
for Colonial and certain other matters a court of ultimate 
appeal. Thus the decision that a colonial legislature had 
a Common Law power to punish contempts, which was 
made in Beaumont v. Barrett? was overruled in Keilley v- 
Carson? the same judge. Baron Parke, delivering the opin- 
ion in both cases. 

Sec. 468. The theory that the House of Lords is bound 
to follow its own precedents is not an ancient one. As 
late as 1760, in Pelham v. Qregory^ the House of Lords 
decided contrary to a previous decision of its own. But 
the prevailing view now seems to be that the House of 
Lords cannot depart from its own precedents in judicial 
matters. 

Sec. 464. Third. Does a lower court in England ever 
decide in opposition to a precedent furnished by a court 
of appeal? Never, unless there has been an obvious 
blunder made by the upper court. I can recall but two 
instances in the English books. The first is HefiMman y. 
Fryer? where the court of appeal held that pecuniaiy lega- 
tees and specific devisees must contribute pro rata to the 

1 But see Pollock, First Book of Jar. d08, 809. 

« 1 Moore, P. C. 59 (1828). * 3 Bro. P. C. (Toml. ed.) 204. 

• 4 Moore, P. C. 63 (1842). • L. R. 2 Eq. 627 ; 3 Ch. 420 (1867). 



206 NATURE AND SOURCES OP LAW 

payment of a testator's debts, contrary to the well-settled 
rule. The lower courts have repeatedly refused to follow 
this decision, saying that it was clearly a mistake. The 
other instance is a ruling of Lord Westbury, when Chan- 
cellor, in Cooknejf v. AnderaaUy^ made in ignorance of a 
statute. 
' Sec. 465. Fourth. Can decisions of the courts be 
properly considered as sources of Law ? If the object of 
asking this question is to ascertain the fact, there can be 
but little doubt of the answer. Certainly the judges, in 
deciding cases, draw rules from precedents. They decide 
cases otherwise than they would have decided them had 
the precedents not existed, and they follow the precedents, 
although they may think that they ought not to have been 
made. Why has any question, therefore, been raised on 
this? It is because the judges have been unwilling to 
seem to be law-givers, because they have liked to say that 
they applied Law, but did not make it, while, if the deci- 
sions of courts were sources of Law, it could not be denied 
that the judges, to that extent, did make Law. 

Sbo. 466. Sir Matthew Hale, in his History of the Com- 
mon Law, which was first published in 1718, after his 
death, says : — 

** The decisions of courts of justice ... do not make a 
law properly so called (for that only the King and Parlia- 
ment can do); yet they have a great weight and authority 
in expounding, declaring and publishing what the law of 
this kingdom is, • . • though such decisions are less than 
a law, yet they are a greater evidence thereof than the 
opinion of any private persons, as such, whatsoever . . . 
Because they [the judges] do sedere pro tribunal^ and 

^IDeO. J. &S. 366(1863). 



JUDICIAL PRECEDENTS 207 

their judgments are strengthened and upheld by the Laws 
of this Kingdom, till they are by the same law reversed 
or avoided."^ 

Seo. 467. But the classical passage is in Blackstone's 
Commentaries : — 

** As to general customs, or the common law, properly so 
called; this is that law, by which proceedings and determi- 
nations in the King's ordinary courts of justice are guided 
and directed. • • . How are these customs or maxims to 
be known, and by whom is their validity to be determined 7 
The answer is, by the judges in the several courts of jus- 
tice. They are the depositaries of the laws; the living 
oracles, who must decide in all cases of doubt, and who are 
bound by an oath to decide according to the law of the 
land. . • . Judicial decisions are the principal and the 
most authoritative evidence that can be given of the exist- 
ence of such a custom as shall form a part of the Common 
Law. . . • For it is an established rule to abide by former 
precedents, where the same points come again in litiga- 
tion; as well to keep the scale of justice even and steady, 
and not liable to waver with every new judge's opinion; as 
also because the law in that case being solemnly declared 
and determined, what before was uncertain, and perhaps 
indifferent, is now become a permanent rule, which it is not 
in the breast of any subsequent judge to alter or vary from, 
according to his private sentiments, he being sworn to de- 
termine, not according to his own private judgement, but 
according to the known laws and customs of the land, not 
delegated to pronounce a new law, but to maintain and 
expound the old one. Tet this rule admits of exceptions, 
where the former determination is most evidently contrary 

1 Hale, Hist Com. Law (4th ed.) 67. 



208 NATURE AND SOURCES OF LAW 

to reason; much more if it be clearly contrary to the 
Divine Law. But even in such cases the subsequent 
judges do not pretend to make a new law, but to vindicate 
the old one from misrepresentation. For if it be found 
that the former decision is manifestly absurd or unjust, it 
is declared, not that such a sentence was had law, but that 
it was not law; that is, that it is not the established custom 
of the realm, as has been erroneously determined. . . • 
The doctrine of the law then is this : that precedents and 
rules must be followed, unless flatly absurd or unjust; for 
though their reason be not obvious at first view, yet we 
owe such a deference to former times as not to suppose 
they acted wholly without consideration. To illustrate 
this doctrine by examples. It has been determined, time 
out of mind, that a brother of the half-blood shall never 
succeed as heir to the estate of his half-brother, but it shall 
rather escheat to the King or other superior lord. Now 
this is a positive law, fixed and established by custom, 
which custom is evident by judicial decisions; and there- 
fore can never be departed from by any modern judge 
without a breach of his oath and the law. For herein 
there is nothing repugnant to natural justice; though the 
artificial reason of it, drawn from the feodal law, may not 
be quite obvious to everybody. And therefore, on account 
of a supposed hardship upon a half-brother, a modern judge 
might wish it had been otherwise settled, yet it is not in his 
power to alter it. But if any court were now to determine, 
that an elder brother of the half-blood might enter upon 
and seize any land that were purchased by his younger 
brother, no subsequent judges would scruple to declare 
that such prior determination was unjust, was unreason- 
able, and therefore was not law. So that the law and the 



JUDICIAL PRECEDENTS 209 

opinicn of ike judge are not always convertible terms, or one 
and the same thing; since it sometimes may happen that 
the judge may mistake the law. Upon the whole, however, 
we may take it as a general rule that the decisions of courts 
of justice are the evidence of what is Common Law; in the 
same manner as, in the Civil Law, what the emperor had 
once determined was to serve as a guide for the future." ^ 

Sec. 468. Blackstone's statement, in short, is this : 
The Common Law consists of general customs, but what 
these customs are must be known from the decisions of the 
courts ; former precedents must be followed, a decision of 
a court makes what was before uncertain and indifferent 
a permanent rule, which subsequent judges must follow; 
but precedents are not absolutely binding, they can be 
disregarded when flatly absurd or unjust. 

Sec. 469. There seems little occasion to find fault with 
this statement, so far as it concerns the force and effect of 
precedents as a source of Law, but Blackstone's attempt 
to carry back further the source of Law into general cus- 
tom, and make the decisions only evidence of that custom, 
is unfortunate. 

Sec. 470. The notion that judicial decisions are only 
evidence of a preexisting law was fallen foul of by Bentham ; 
but in Austin it found its most influential opponent. It 
may be questioned whether he has not devoted himself too 
exclusively to this part of Blackstone's remarks, and neg- 
lected the substantially accurate view of the force and 
effect of precedents which the commentator gives. Aus- 
tin speaks of ^* the childish fiction, employed by our judges, 
that judiciary or Common Law is not made by them, but 
is a miraculous something made by nobody, existing, I 

1 1 Bi. Com. es-n. 



210 NATURE AND SOURCES OF LAW 

suppose, from eternity, and merely declared from time to 
time by the judges. " ^ 

Sbg. 471. Austin's views have met general acceptance. ' 
But Blackstone has not wanted defenders. One of the 
latest attempts to rehabilitate him is by his editor, Profes- 
sor Hammond. As perhaps the most serious attempt, it 
is worth while to examine it in detail. It is contained in 
a note to the passage of Blackstone quoted above. 

Sbc. 472. Professor Hammond begins by saying that 
**no passage of Blackstone has been the object of more 
criticism and even ridicule than this, " and he refers to 
Austin, to Digby's History of the Law of Real Property, 
to Pomeroy's Municipal Law, and ** to the swarms of minor 
writers who have held Blackstone up to ridicule in small 
books and legal periodicals." **Such writers," he goes 
on to say, ^^ may not think themselves answered by the 
unbroken testimony of the judges themselves, who from 
the earliest Tear-books to the latest reports of the highest 
courts have unanimously agreed that they neither made 
nor could make new law in deciding cases which come be- 
fore them for adjudication." Though it is doubtless true 
that judges have often disclaimed the authority to make 
law. Professor Hammond's two citations are not felicitous. 
In 8 Edw. III. 69, pL 85 (not 8 Edw. VI. pi. 86, fol. 827 
as cited) Herle, J., speaking of a point ^^ as law before 
we were bom," says, " we mU not change that law," which 
is certainly no proof that on a point not settled he could 
not make law. The other passage is a remark in 1804 by 
the same man (but not by the same judge, as stated by 
Professor Hammond, for he was not a judge till twenty- 
three years later) in argument to the court : ^* The judg- 

i%Jxa. (4thed.)666. • See Holland, Jarisp. (10Uied.)S8. 



JUDICIAL PRECEDENTS 211 

ment to be by you now given will be hereafter an author- 
ity in every quMte non admisit in England," ^ which, so far 
as it goes, asserts that a decision of the judges does make 
Law. 

Sec. 478. The learned editor then goes on to say that 
the effect of the contradiction of Blackstone's doctrine 
^^ in making the rule of law identical with the mere point 
decided in the given case, and relieving the student or 
practitioner from any attempt to seek for underlying prin- 
ciples, will always make it popular with busy attorneys 
and students incapable of abstract thought." That is one 
way of putting the matter. Another way of putting it 
would be to say that the effect of Blackstone's doctrine in 
denying to judicial decisions the effect of making law, and 
relieving the student or practitioner from any attempt to 
find out from them the law which they have made, will 
always make it popular with lazy attorneys and students 
too weak in intellect to grasp the real significance of facts. 
But perhaps remarks of this sort, on the one side or the 
other, do not tend to aid in the search for truth. 

Sec. 474. "The position of Austin and his followers 
rests upon a confusion between the historical and scientific 
aspect of the doctrine. Historically considered, it is true 
that our judges make Law." Here Professor Hammond 
gives away his whole case. "Historically true," means 
really true, that a thing is a fact. To say that a thing is his- 
torically true but scientifically false means that it is a fact, 
but that it cannot be logically fitted into a certain system, 
and that is undoubtedly the case here. That judges make 
the Law is a fact, and it is true that this fact cannot be logi- 
cally deduced from Blackstone's doctrine. Austin and his 

1 S2 Edw. I. (Horwood'8 ed.) p. 82. 



> i XATURE AND SOURCES OF LAW 

vC>««R bave said, ^so maoh the worse for Blackstone's 
iiA^'^riti^'* Professor Hammond says, "so much the worse 

^^ui^-.^ 475. The learned editor then proceeds, in the 
^^^^mI and most emphatic manner, to declare the law- 
^,yn l>l i^ ^rork of the judges. He says : ** In the historical 
4i;$Mci of the system they have actually made new law." 
And then he spoils it iJl. "So it is in every science. 
W« can trace historically the growth of creeds, the devel* 
0pment of theological, philosophical, or scientific truths, in 
Ike utterances of successive thinkers and students. No 
tuie infers from this that these men have made theo- 
logical or scientific truth.'' But it is not true that we 
can trace historically the development of theological, philo- 
sophical, or scientific truths in the utterances of successive 
thinkers ; what we can trace is the development of human 
knowledge and belief of those truths; but the truths 
themselves are entirely independent of human knowledge 
and belief, and therefore "no one infers from this that 
these men have made theological or scientific truth.'* 
Take the doctrine of Transubstantiation : the origin or 
growth or decline of belief in it has been doubtless de- 
pendent on the declaration of eminent men, but whether 
the doctrine is true, whether the mysterious change in the 
consecrated elements occurs, is independent of the opin- 
ion of Loyola or Luther or Zwingle. So the laws of light 
do not depend upon the ideas of Sir Isaac Newton or any- 
other physicist with regard to them. 

Sec. 476. "We do not infer that philosophers make 
the laws of nature, how then can we infer that judges 
make the law of the land ? " is what Professor Hammond 
says. Because philosophers do not make the laws of na- 



JUDICIAL PRECEDENTS 213 

ture, but, as Professor Hammond has just said, judges do 
make *^ historically " the laws of the land. Because the 
laws of nature are independent of human opinion, while 
the Law of the land is human opinion. The heavenly 
bodies have been governed by the same laws after the 
birth of Ptolemy and Copernicus and Newton that they 
were before, but the English people have not been gov- 
erned by the same Law since Lord Mansfield's time that 
they were before. His decisions have made that to be 
Law which was not Law before, and the Law of England 
since his time is different from what it would have been, 
had he been a man of a different cast of mind. 

Sec. 477. Or, to take an instance from the Constitu- 
tional Law of the United States, suppose Chief Justice 
Marshall had been as ardent a Democrat (or Republican, 
as it was then called) as he was a Federalist. Suppose, 
instead of hating Thomas Jefferson and loving the United 
States Bank, he had hated the United States Bank and 
loved Thomas Jefferson, how different would be the Law 
under which we are living to-day. 

Sbc.' 478. It is quite true, as Professor Hammond goes 
on to say, that the courts will sometimes refrain from 
making new law. No one has ever dreamed of denying 
that in their law-making power they are confined by stat- 
utes and by the decisions of their predecessors, and no one 
has ever thought the existence of such confining limits 
to be ^* a childish fiction," as the editor complains. 

Sec. 479. The examples which Professor Hammond 
employs to show the scientific soundness of Blackstone^s 
theory, and the advantages of carrying it into practice, will 
hardly seem to most persons to have been happily selected. 
Suppose that A., in New York, makes a note payable in 



214 NATURE AND SOURCES OF LAW 

New York to the order of B. ; that B., in New York, in 
fraud of A., transfers the note to C, as collateral security 
for a preexisting debt ; and that C. sues A. in New York. 
If C. is a citizen of New York, he will fail ; if he is a citi- 
zen of New Hampshire, he can go into the Federal Court 
and succeed. 

Sec* 480. Again, suppose that A., living in Newport 
in the State of Rhode Island, gives property to B., to pay 
the income to C, A.'s son, for life, without any power of 
anticipation on C.'s part or any liability for his debts; 
and that C. makes a contract with D., a Newport butcher, to 
furnish him with meat, and then refuses to pay him. D. 
gets a judgment in the Rhode Island courts against C. 
and tries to enforce it against the trust fund. If B. or 
C. are citizens of Rhode Island, D. can g^t paid for his 
meat, but if they are both citizens of New York, they can 
remove the case into the Federal Court, and C. can then, 
according to the dictum in NxehoU v. Eatan^ cheat his 
creditor with impunity. 

Sbo. 481. Now I am not here considering any practical 
advantages resulting from this state of things, nor how far 
it is the natural or necessary consequence of our complex 
form of government. But certainly, from a ^* scientific '' 
point of view, nothing could be more shocking. It seems 
a recurrence to barbarism, to the times when Burgundians, 
Visigoths, and Romans, living beside each other, had their 
own separate and tribal laws. 

Sec. 482. And how did this state of things have its 
origin? Professor Hammond truly says that it was by 
Story ^ J., in Swift v. Ty%on} adopting the Blackstonian 
theory : ^^ In the ordinary use of language it will hardly 

U6Pet.l, la 



JUDICIAL PRECEDENTS 215 

be contended that the decisions of Courts constitute laws." 
These particular consequences of Blackstone's theory are 
hardly such as to recommend the theory itself. 

Sec. 488. But the Supreme Court of the United States 
has, since this state of things was established, been com- 
pelled, by what Professor Hammond would call the aspect 
of historical as against that of scientific truth — that is, 
by the stress of the real facts of life — to abandon the 
theory of Blackstone in a most important class of cases, 
those concerning municipal bonds. I do not undertake 
to establish the court's consistency, but it is interesting as 
an example of how an elaborate theory, sustained by great 
names, will break down when it is in irreconcilable con- 
flict with facts. 

Sec. 484. In several of the United States, bonds were 
issued by towns and cities, generally in aid of railroads ; 
the Supreme Courts of the States declared that the bonds 
were validly issued ; on the faith of these decisions the 
bonds were sold ; and then new judges were elected and 
the bonds were declared invalid. Blackstone's theory was 
urged with great force, that the decisions of the courts 
did not make Law ; and that the Law must be taken to 
have been always what the latest decisions declared it to 
be. But the Supreme Court ruled otherwise, and has 
always held firmly to the doctrine that if a contract, when 
made, was valid by the Law as then laid down by the 
courts, its obligation could not be impaired by any subse- 
quent decision. I will consider these cases more fully 
later. 

Sec. 485. Professor Hammond then points out a sup- 
posed inconsistency in Austin, and his tacit adoption of 
Blackstone's views while criticizing Blackstone himself. 



216 NATURE AND SOURCES OF LAW 

Blackstone,^ speaking of the rescripts of the Roman Em- 
perors, and describing their character, says : *^ In like man- 
ner the canon laws, or decretal epistles of the popes, are 
all of them rescripts in the strictest sense. Contrary to 
all true forms of reasoning, they argue from particulars 
to generals."' 

Sbg. 486. Austin, in his unmannerly fashion, adverts 
to this as a foolish remark (and indeed it is not a very 
wise one, nor does Professor Hammond seek to defend it) 
and he goes on : ^^ The truth is that an imperial decrete 
of the kind to which Blackstone alludes is a judicial 
decision establishing a new principle. Consequently, the 
application of the new principle to the case wherein it is 
established is not the decision of a general by a particular, 
but the decision of a particular by a general. If he had 
said that the principle applied is a new principle, and 
therefore an ex po%t facto law with reference to that case, 
he would say truly. But the same objection, it is quite 
manifest, applies to our own precedents."* 

Sbg. 487. Here, says Professor Hammond, is a logical 
fallacy, for in assuming that the principle established by 
the decision or decrete is a new one, Austin contradicts 
his own statement that the process is *^ the decision of a 
particular by a general," for, *^ if these latter words mean 
anything, it is that the principle must have existed before 
the decision, so that the decision may have been made by it.** 

Sec. 488. But is this the meaning ? Had it not been 

U Com. 69. 

* Austin takes Blackstone as if speaking of the Emperor's decreta or 
judgments on appeals, and not of their rescripts or interlocutory advice, 
but for the aigument this seems immateriaL 

•2Jur. (4th ed.) 664. 



JUDICIAL PRECEDENTS 217 

for the difficulty which so careful a reader and accurate a 
thinker as Professor Hammond appears to find, Austin's 
meaning I should have thought quite clear. What Aus- 
tin says is this: These prayers for instruction were 
brought to the Emperors in cases where there was no 
existing Law which could guide the magistrate. It was 
necessary, therefore, to make a new Law, or the case 
would have been undecided, but instead of issuing a 
general ex po9t facto statute, the Emperor established a 
new principle in accordance with which the case ought to 
be decided, and directed a decision accordingly. Whether 
the Emperors always, in fact, acted in so logical and philo- 
sophical a manner may be reasonably doubted, but there 
appears to be no fallacy in Austin's reasoning. 

Sec. 489. In fact, Professor Hammond has, it would 
seem, confounded two things, — the order of the intel- 
lectual processes that go on in a judge's mind when a 
case is brought before him, and the succession of events 
outside of his mind. Suppose a matter is brought before 
the judge, for which, ^^as an historical fact," there is no 
Law, no rule for decision in existence ; and disguise the 
matter as we will, such cases are not infrequent. If the 
judge is a sensible and conscientious man, he will not de- 
cide the case by rule of thumb, but will endeayor to es- 
tablish a principle on which such cases ought to be decided, 
and then, having determined that principle, he will apply 
it to the case. But all this has no tendency to prove that, 
before the case was brought into court, there was a rule 
of law in existence governing the case ; in fact, it dis- 
tinctly negatives that view, and reduces it to a pure 
fiction, which it is. 

Sec. 490. ^^ Plainly, his [Austin's] mistake is the com- 



218 NATURE AND SOURCES OF LAW 

mon one of confounding the principium essendi and prin- 
eipium eogno%eendV^ M^y we not rather say that, plainly, 
his learned editor^s mistake is to assume that, becaaise a 
judge has decided a case in accordance with a general 
rule, the rule must have existed before the case came 
into court; and this mistake is streng^ened, if not 
caused, by the misleading comparison with physical 
science, to which reference has been made. 

Sec. 491. Professor Hammond then sets up an adver- 
sary who says if the Law in question existed before the 
decision of the court, it must have existed from eternity. 
Over this foolish person Professor Hammond wins an 
easy victory. But if it be true, as it undoubtedly is, that 
the rule of Law on which a case is decided may have 
existed before the case comes before the court, and yet 
may not have existed for all time, that carries us very 
little way towards the proposition that the rule of Law 
on which a case is decided rmut have existed before the 
case itself. 

Sec. 492. " The doctrine of precedent, correctly stated, 
forbids the assumption that a new law was created by the 
prior decision — or that, in Austin's words, ^the imperial 
decrete established a new principle,' in the sense of cre- 
ating a new law. If it did, and the present case arose 
under the law so created by this precedent, we should be 
deciding the later case by a different law from that under 
which the precedent arose." And so we are. Suppose it 
has been generally believed that an action will lie for ver- 
bal slander, but upon the case coming before the court of 
final appeal, they decide, perhaps by a majority of one, 
that it will not. Does not any later case come before a 
judge under a different state of the Law? Is a judge 



JUDICIAL PRECEDENTS 219 

in the same position as he was before that decision ? Is 
there not a new element introduced? How must the 
Law be the same, when there is now an element, all but 
necessarily conclusive, which there was not before ? Pro- 
fessor Hammond declares we must not say that the Law 
is changed, because such change cannot be reconciled 
with the simplest rule of justice ; but, say what we will, 
the fact is that there is a new controlling element intro- 
duced into the Law. One can understand a German jurist 
considering such a state of things as unjust, and therefore 
refusing to give any weight to Judicial Precedents, but 
how a Common Law lawyer, who regards the system of 
precedent with complacency, can suppose that he can turn 
injustice into justice by inventing a fiction is a remarkable 
instance of the power of conventional expressions. 

Sec. 498. "The falsity of Mr. Austin's theory results 
also from a correct statement of the true nature of judicial 
power " ; and Professor Hammond goes on to show that 
courts are charged with executive duties; but this does 
not in the least tend to show that they may not also be 
charged with legislative duties, as indeed, in the case of 
their power to make rules for practice, is notoriously true. 

Sec. 494. I do not understand that Professor Hammond 
thought that any change ought to be made in the mode 
of administering justice ; if the judges have cases come 
before them which present questions for whose decision 
there are no rules, I do not understand that he would 
have the judges leave the cases undecided, or that he would 
have the decisions based on whim or instinct ; but he deems 
it important that the judges should say, and that the 
people should believe, that the rules according to which 
the judges decide these cases had a previous existence* 



220 NATURE AND SOURCES OF LAW 

Whether it is desirable that such remarks should be made, 
or whether, if made, it is desirable that they should be 
believed, whether it is desirable that the judges' power 
and practice of making Law should be concealed from 
themselves and the public by a form of words, is a matter 
into which I do not care to enter. The only thing I am 
concerned with is the fact. Do the judges make Law ? 
I conceive it to be clear that, under tiie Common Law 

[system, they do make Law.^ 

/ Sbo. 495. The opinions of another writer on the ques- 
tion of the law-making power of the judges, a writer 
whose opinions deserve to be treated with the highest 
respect, remain to be considered. Mr. James C. Carter 
published an article ^ on ^^ The Ideal and the Actual in 
the Law," in which he maintained that the judges were 
the discoverers and not the makers of the Law. That 
excellent man has since gone to his rest, but there has 
lately been published a book entitled Law, its Origin, 
Growth and Function, which he had completed before 
his death, and which contains his matured opinions on 
the subject. 

Sec. 496. Mr. Carter, at an earlier period of his life, 
was a strenuous opponent of the adoption by the State 
of New York of Mr. David Dudley Field's Civil Code. 
In this opposition he was successful. I suppose it was 
largely by his endeavors that the State was saved from 
the threatened danger. The remembrance of this great 
struggle was always in his mind and was, I feel sure, the 
ration cTStre of his essay and of his book, and has affected 
his whole point of view. 

Sbo. 497. The main thesis of Mr. Carter's essay is the 

1 See Maine* Anc. Law (4Ui ed.) 81-38. ^24 Am. Law Rev. 762. 



JUDICIAL PRECEDENTS 221 

erroneousness of the theory that all Law proceeds from 
the commands of the sovereign. He admits fully ^^ that 
all the knowledge which we really have of the Law comes 
from the judge,"^ but he shrinks from saying that the 
judge makes Law, because he fears that this would recog- 
nize the theory that all Law comes from the command of 
the sovereign. If I shared the fear, I should be equally 
unwilling to use the expression that the judges make 
Law. But is this objectionable result a consequence of 
holding that judges make Law ? 

Sec. 498. What is meant by judges making Law? It 
is meant that a decision suo vigore^ without regard to its 
agreement or disagreement with some ideal, is a source 
of Law; not the only, not necessarily the controlling, 
source of Law, but something which has an independent 
and not merely evidential value. To decide cases is the 
necessary function of a judge; it is of the essence of 
judgeship; but whether a judge can establish precedents 
or not is not of the essence of judgeship. In England 
judges have the power; in Germany, generally, they have 
not. The sovereign might interfere to give them the power, 
or to deny them the power, but generally he has not inter- 
fered, and therefore, if they have the power, it does not 
arise from the command of the sovereign (unless we adopt 
the theory of Austin that whatever the sovereign permits 
he commands, a theory which I am at one with Mr. Carter 
in disapproving), but whether decisions shall establish 
precedents is left to the free action of the judicial mind, 
affected by ideas of public policy, by popular custom, and. 
by professional opinion. These motives, operating on the 
minds of English and American judges, have led them to 

i24Am. LawRey. 758. 



222 NATURE AND SOURCES OF LAW 

recognize decisions of the courts as sources of the Law. 
Judges, then, may make Law, i,e. establish precedents, 
and yet such Law may not be the product of the sover- 
eign's command, and therefore the dilemma which Mr. 
Carter feels does not, it seems to me, in truth exist. 

Sec. 499. In his essay Mr. Carter does not seem to 
regard the effect of a judicial decision as evidential. 
^^ Inquiry,'' he says, ** is made by the judge, concerning 
what his predecessors have done, and if he finds that a 
similar state of facts has been considered by them and 
the Law pronounced in reference to it, he declares the 
same rule." But he says a judge rather diseoven than 
makes the Law. The expression ^^ discovered" throws 
light on the processes of the judicisd mind. To speak of 
^* making " the Law suggests an arbitrary will, while to 
speak of ^ discovering " it suggests the process of reason 
and reflection. Indeed Mr. Carter adopts the same view 
substantially as to the legislature, properly so-called. 
^^ Its liberty of action so far exceeds that of the judicial 
tribunals as to justify, for ordinary purposes, such a des- 
ignation of its functions [i.e. making Law], but the 
deeper and more philosophical view would assimilate its 
office more nearly to that performed by the judicial tri- 
bunals, namely, of affixing the public mark and authenti- 
cation upon customs and rules existing, or struggling 
into existence, in the habits of the people."^ But while I 
recognize the reason which led Mr. Carter to use the word 
^* discover," and also the fact that the word ^^ make " may, 
although improperly, carry with it a suggestion of arbi- 
trariness, I must yet regpret Mr. Carter's substitution of 
the term " discovery " as misleading. 

1 24 Am. Law Rev. 766. 



JUDICIAL PRECEDENTS 223 

Sec. 500. But, in his posthumous treatise, Mr. Carter 
has pressed the idea of the evidential character of prece- 
dents farther than in his essay. The theory of his book 
seems to be that the Law is created by custom ; that 
when the judges declare the Law, they are declaring that 
to be Law which already existed ; and that the declaration is 
only evidence, though a high kind of evidence, of the Law. 
If this be his matured opinion, and I think it is, I must 
say, with all diffidence, I cannot agree with him, AmieuB 
Plato^ sed magis arnica Veritas. 

Sbc. 501. I have already several times tried to point 
out the difference between a discoverer in the fields of 
physical science and a judge. A discoverer in chemistry 
does not make the natural law which he discovers. Water 
was composed of oxygen and hydrogen before its compo- 
sition was discovered, — the discovery in no way affected 
the natural law ; the existence of the natural law was 
entirely independent of human opinion, — but the Law 
of the land is made up of human opinion. Expressions 
of human opinion are its sources, and an important class 
of those expressions of opinions are the declarations of 
the judges. 

Sec. 502. It is very easy to weave plausible genersd 
theories, but there is only one test of their correctness. Do 
they agree with the facts ? I have constantly endeavored, 
in these lectures, to apply that test, the only conclusive 
test, and to determine whether a theory is true by seeing 
how it fits the facts of a concrete case. Let us apply that 
test here. 

Sec. 503. In the year 1620, the court of King's Bench 
decided the famous case of Pells v. Broum,^ It was this : 

^ Cro. Jac. 600. 



224 NATURE AND SOURCES OF LAW 

Land was devised to Thomas Brown and his heirs, but if he 
died without issue in the lifetime of his brother William, 
the land was to go William and his heirs ; that is, Thomas 
took an estate in fee simple, with an executory devise, as 
it is called, over to WiUiam, in case Thomas should die 
in the lifetime of William without issue. Thomas parted 
with the land by a conveyance known as a common recov- 
ery, and the question was whether Edward Pells, who 
claimed the land under this conveyance, held it subject to 
the executory devise to William or free from it, or, in other 
words, whether an executory devise after a fee simple is 
destructible by the holder of the fee. 

Sec. 504. The court, by three judges to one, decided 
that the executory devise continued, that Pells took the 
land subject to it, that Thomas could not destroy it ; and 
so the Law has been held ever since. Therefore, in Eng- 
land and America, future contingent interests can be val- 
idly created by will. This is by no means a necessary state 
of things. In Germany, in France, in Louisiana, and gen- 
erally, I believe, where the Civil Law prevails, future con- 
tingent interests are allowed, if at all, only to a very 
limited extent. 

Sec. 505. Mr Carter, I understand, would say that this 
doctrine as to the validity of future interests was created 
by custom, and was Law before the case of PelU v. Bnnvn. 
Now, what is custom? Custom is what is generally prac- 
tised in a community and believed by the community gen- 
erally to be a proper practice. 

Sec. 506. Now is it conceivable that in England, at the 
beginning of the seventeenth century, a belief was preva- 
lent in the community that an executory devise could not 
be destroyed by a common recovery with single voucher. 



JUDICIAL PRECEDENTS 225 

Why, there was not one man in England out of ten thou- 
sand, not one out of fifty thousand, who had any belief 
upon the question, or who would even have understood what 
it meant. To say that there was a custom that future con- 
tingent interests were indestructible is a baseless dream, 
invented only to avoid the necessity of saying that judges 
make Law. 

Sec. 507. But, further, before the decision in PeUs v. 
Broumy so far was there from being a general opinion in 
the community that executory devises were indestructible, 
there was no such opinion among the judges. One judge 
of the four, as I have said, dissented, and the decision was 
far from meeting favorable reception among the judicial 
brethren. In Scattergood v. Sdge^ Powell^ J., said that 
the notion that an executory devise was not barred by a 
recovery ** went down with the judges like chopped hay "; 
and Trebi/y C. J., said, "These executory devises had not 
been long countenanced when the judges repented them; 
and if it were to be done again, it would never prevail "; 
and stronger statements were made by Latch, as counsel 
in O-ay V. Gay.^ But the point having been decided by 
the court in favor of executory devises, the Law has stood 
so ever since. 

Sbg. 508. How, in the face of all this, is it possible to 
say that the judges in Pelh v. Brawn only declared Law 
which custom had previously created, or, to use an ex- 
pression of which Mr. Carter is very fond, that the fair 
expectation of the community was that a doctrine should 
have in its favor three judges out of four, instead of one 
out of four? It is possible to make such a statement, but 
what support has it in the real facts? If Law was ever 

1 See Gray, Bole against Ferpetoiiies, f 160. 



226 NATURE AND SOURCES OF LAW 

made by any one, Montague, C. J., and Chamberlayne and 
Houghton, JJ., made Law. 

Sec. 509. It is hard to overestimate the importance of 
the Law which these three men made. It lies at the root 
of the Law of future interests. Millions upon millions, 
probably billions upon billions, of property have gone to 
persons to whom they would not have gone, if two of the 
judges of the majority had agreed with their brother 
Doderidge. 

Sec. 510. And this is only one case out of thousands 
where the Law stands as it does to-day upon the opinions 
of individuals in judicial position on matters as to which 
there was no general practice, no custom, no belief, no 
expectation in the community. 

Sec. 511. It has been a matter greatly disputed, how 
much or how little part is played in the development of 
human affairs by individuals. It is contended that the 
Zeitffeist^ or the great underlying forces and instincts of 
human nature, will have their way without regard to, and 
in spite of, the acts of individuals ; that such acts are but 
ripples upon the mighty stream of time. I do not deny 
that there is truth in this. It may be that the ultimate 
goal of human experience will be the same as if CsBsar or 
Napoleon or Mahomet had never existed. That may be 
true of the ultimate goal, but the road by which humanity, 
through long periods of its history, will travel towards its 
goal is largely determined by the beliefs, the opinions, the 
acts, of great men. 

Seo. 512. And not of great men alone ; very small men 
may produce great results ; it was a very small man who 
murdered Henry IV, a very small man who murdered 
President Lincoln. Especially is this true if a small man 



JUDICIAL PRECEDENTS 227 

happens to be put in a great place. I know no reason 
to suppose that Montague, C. J., and Chamberlayne and 
Houghton, J J., were in any way great men, but the fact 
that they said one thing rather than another has seriously 
affected the course of human affairs in an important de-j 
partment of the Law. 



CHAPTER X 

JUDICIAL PRB0EDBNT8 IK THB UinTED 8TATB8 

Sec. 518. Taming now from the doctrine as to Judi- 
cial Precedents in the Common Law in general, let us see 
what modifications, if any, that doctrine has received in 
the United States. Besides the four points as to the Eng- 
lish Common Law discussed in the last chapter, a question 
arises in the United States with reference to the weight 
in one of the States of decisions made by the Federal 
courts or the courts of another State or of England ; so 
that we have now to consider five matters in the Law of 
the United States : — 

1. How great is the authority of a decision in the court 
which made it, or in a court of coordinate jurisdiction ? 

2. Is there any court which is absolutely bound by its 
own decisions ? 

8. Does a lower court ever decide in opposition to a 
higher court of appeal ? 

4. What is the weight in the courts of one jurisdiction 
of decisions made in the courts of another jurisdiction? 

5. Can decisions of the courts be considered as sources 
of Law? 

Sec. 514. First The general rule and practice as to 
the authority of a decision in the court which made it, or 
in a court of coordinate jurisdiction, is substantially the 
same in the United States as in England. Naturally, 

228 



JUDICIAL PRECEDENTS IN THE UNITED STATES 229 

owing to the character of the people and of the institutions, 
the weight attached to Judicial Precedents is somewhat 
greater in England than in America, but the difference 
hardly admits of any precise statement, and it does not 
seem worth while to attempt it. The peculiar position of 
the State and Federal courts towards each other will be 
discussed farther on. 

Sec. 515. Second. Is there any court in the United 
States which is absolutely bound by its own decisions ? 
We have seen that the House of Lords will not overrule 
its own prior decision, but will leave the matter with the 
legislature. No such doctrine prevails in America ; the 
highest courts in the respective States and the Supreme 
Court of the United States all consider that they have 
the power, however inexpedient it may be to exercise it, 
to depart from their former rulings. 

Sbc. 516. Thus, the Supreme Court of the United 
States has overruled its previous decisions in matters of 
the greatest importance. In 1825, that court decided that 
the Admiralty Jurisdiction did not extend to the great 
rivers above the ebb and flow of the tide, and reaffirmed 
the doctrine in 1887. But in 1851 it overruled these 
cases and held that the Admiralty Jurisdiction extends 
over navigable rivers. Again, in 1870, that court held 
the Legal Tender Act to be unconstitutional. The 
judges stood five to three. One of the majority resigned, 
and two new judges were appointed ; the question was 
again brought up in another cape, and the court, in 1871, 
overruled its former decision, the two new judges uniting 
with the previous minority of three, and turning it into a 
majority of five. Oreat feeling prevailed in some quarters 
as to the supposed mode in which this change had been 



230 NATURE AND SOURCES OF LAW 

brought about; but the power of the court was not 
questioned. 

Sbc. 517. Third. The same rule as to the duty of a 
lower court to follow a precedent established by a higher 
court prevails in America as in England. It has been 
said in the United States that a judgment made by an 
equally divided court, though conclusive in the particular 
case, should have no weight attached to it as a prece- 
dent.^ 

Sbo. 518. Fourth. In any one of the United States, the 
decisions of the courts of another State are recognized 
as determining the Law of such other State, according to 
the general doctrine of the Common Law. As to their 
authority in the former State on its own Law, it does not 
seem that they can properly have a greater weight than 
the opinions of equally learned non- judicial persons who 
have had the same advantages and same motives for 
arriving at a just conclusion. 

Sec. 519. In one way, indirectly, they do carry a 
greater weight ; they have authority as settling the Law 
for the States in which they are made, and it is a reason, 
and a strong reason, why Law should be established in a 
State in a certain way that it is settled in the other States 
in the same way. 

Sec. 520. Another interesting point arises from the 
fact that, in several States, for instance, Maine and West 
Virginia, the systems of Law are derived from another 
State, of which each formed originally a part. In such a 
case, the decisions of the courts of the parent State, made 

^See Bridge v. Johnson, 6 Wend. 842, 372 ; People y. Mayor of New 
York, 26 Wend. 262, 266 ; Suing v. Bank of United States, 11 Wheat. 
60, 78. 



JUDICIAL PRECEDENTS IN THE UNITED STATES 231 

before the separation, continue to have the same force in 
the new State that they had in the old. 

Sec. 521. The question as to the authority of English 
decisions in the United States is more difficult. There 
are three periods to be considered: the period before 
the planting of the American Colonies ; the period be- 
tween the planting of the Colonies and the Revolution ; 
the period subsequent to the Revolution. 

Sec. 522- As to the decisions made before the establish- 
ment of the English Colonies in America, there seems to be 
little doubt that, in the absence of legislation to the con- 
trary, they must be considered as Judicial Precedents. It 
is true that only so much of the English Law as was appli- 
cable to the altered conditions of life was adopted here. 
This doctrine, which is generally approved, leaves a wide 
door for judicial discretion to abrogate or alter the Com- 
mon Law, but does not affect this part of the Law more 
than any other, the Statute Law, for instance. 

Sec. 523. It is clear that the decisions of the English 
courts since the Revolution cannot strictly have any 
weight in the United States as precedents, although they 
still have a value, as showing the opinion of learned men 
as to what the Law was, or ought to be. 

Sec. 524. In the intervening period between the set- 
tlement of the country and the Revolution, there lay, in 
general, no appeal to the English courts, nor to any tri- 
bunal having a control at the same time over the English 
and the Colonial courts, and it seems, therefore, that the 
decisions of the English courts during this period were 
strictly not precedents, but were admissible only upon 
the grounds just stated for considering decisions of the 
English courts subsequent to the Revolution. 



232 NATURE AND SOURCES OF LAW 

Sec. 525. The practical difference, however, between 
the state of things which existed from the early part of 
the seventeenth century to the Revolution, and that which 
would have existed had the United States been subject to 
the jurisdiction of the English court, is, so far as concerns 
the matter in question, but alight. The deference felt for 
the learning and abilities of the English judges was so 
great, and the value attached to their opinions on matters 
of Law so high, that they would have carried but little 
more weight had they been true precedents. 

Sec. 526. Since the beginning of the last century, 
however, this has gradually ceased ; the judgments of the 
English courts are regarded with less awe, and the courts 
in America do not hesitate to depart from their rulings.^ 
In some opinions in the United States the judges strive 
to show that a doctrine which they disapprove has come 
into the English Law since the Revolution, but the true 
question would seem to be. Has it come in since the found- 
ing of the Colonies ? 

Sec. 527. A highly respectable writer has asserted that 
the decisions of the English courts were binding precedents 
down to the Revolution : *^ While colonization continued, 
— that is to say, until the war of the Revolution actually 
commenced, — these decisions were authority in the Colo- 
nies, and the changes made in the Common Law up to the 
same period were operative in America also, if suited to 
the condition of things here." ^ But the only support to 
the doctrine appears to be a dictum of Chief Justice Mar- 
shall. In the case of Catheart v. Rohinwnf Cathcart, 

1 See Appendix IX. Kentucky Law of Non-Citation, 
s Cooley, Const. Lim. (7th ed.) 63. 
« 6 Pet 268, 270 et uq. 



JUDICIAL PRECEDENTS IN THE UNITED STATES 233 

haying made a voluntary conveyance to his ivife, made a 
subsequent conveyance to Robinson. The Supreme Court 
found the conveyance to the wife to be actually fraudulent. 
It was, therefore, unnecessary for it to consider whether 
the English doctrine, that a later conveyance absolutely 
avoids a former voluntary conveyance, without actual 
fraud, was Law. The Chief Justice says that at the time 
of the Revolution this doctrine seems to have been settled, 
and that later decisions go too far and ought not to be 
followed. " The received construction in England at the 
time they [British Statutes] are admitted to operate in 
this country, indeed to the time of our separation from 
the British Empire, may very properly be considered as 
accompanying the statutes themselves, and forming an 
integral part of them. But, however we may respect 
subsequent decisions, and certainly they are entitled to 
great respect, we do not admit their absolute authority." 
I am aware of no case where a court has felt itself 
bound to decide against its own opinion by reason of an 
English judgment given between the colonization and the 
Revolution. 

Sec. 528. Fifth. Are decisions of the courts to be prop- 
erly considered in the United States as sources of Law ? 
Whether decisions are to be considered as true sources of 
Law, or whether they are only evidence of what the Law 
is, is a question which the relations of the Federal to the 
State courts have brought to the front as a practical matter, 
by the discussions upon the weight to be attributed by 
the Federal tribunals to the decisions of the State courts. 
This discussion has taken place principally in contro- 
versies between citizens of different States in which the 
Federal courts have jurisdiction concurrent with that of 
the State courts. 



234 NATURE AND SOURCES OF LAW 

Sec. 529. The Federal and State courts are the judicial 
organs of different political communities, and they are 
subject to the statutes passed by the legislatures of the 
communities of which they are respectively the organs ; 
and if Congress should pass statutes for the conduct of 
the Federal courts which were in conflict with those of 
any or of all the States, — for instance, that writing should 
not be a necessary requisite to the validity or enforcement 
of any contract, — it may be that a State Statute of Frauds 
would not be a defence to an oral contract, say, for the 
sale of land, in any Federal tribunal. There seems to be 
nothing in the express language of the Constitution to 
forbid such a statute. And in all matters of procedure 
and evidence the Laws of the States have been dealt 
with by Congress at their pleasure. For instance, pro- 
cedure in equity is the same in all the Federal courts, 
whatever be the practice of the courts of those States 
in which the Federal tribunals sit.^ 

Sec. 530. But in the absence of Congressional legis- 
lation to the contrary, the position of the Federal courts 
would seem to be this : Those courts are not (with the 
exception of the Supreme Court in a few cases) courts of 
appeal from the State courts. They are courts substituted 
in certain cases for the ordinary State courts. They are 
coordinate with the State courts. The Federal and State 
courts are independent, with no common superior ; they 
derive their authority from different political bodies. 

^ Whether the doctrine that the limits of equity jurisdiction have been 
fixed by Congress and that no State legislature can change them, was 
really called for by any Act of Congress, and, if it was, whether the doc- 
trine has been applied consistently by the Supreme Court, is not a matter 
of inquiry here. 



JUDICIAL PRECEDENTS IN THE UNITED STATES 235 

Sbg. 531. The Federal courts were constituted, not to 
avoid the danger of the State courts laying down improper 
rules, but to avoid the danger of the State courts applying 
their rules unfairly to the advantage of their own citizens. 
As both classes of courts are exercising their functions in 
the same territory, it is desirable that they should apply 
the same rules, that is, the same Law; and since the 
Federal jurisdiction is of an exceptional character, it 
would also seem desirable that the Federal courts should 
draw their rules from the same sources from which the 
State courts draw theirs, namely, from the statutes of the 
State legislatures and the decisions of the State courts. 
Such would seem to have been the right position of the 
Federal courts, even in the absence of special legislation 
by Congress on the subject. 

Sbo. 532. Congress, however, has legislated, but its 
legislation has been confirmatory of this position. In the 
formation of the Constitution and its ratification by the 
States, the powers of the Judiciary attracted comparatively 
little attention, and that little was mostly directed to sup- 
posed dangers which have since shown themselves chimer- 
ical; but by the Judiciary Act, U.S. St. 1789, c. 20, § 34, 
it was enacted that ^^ the laws of the several states, except 
where the Constitution, treaties, or statutes of the United 
States shall otherwise require or provide, shall be regarded 
as rules of decision in trials at common law in the courts 
of the United States in cases where they apply." Pro- 
cedure in cases, civil and criminal, has been dealt with, as 
I have said, by later Acts of Congress, but the section 
cited has remained, without addition or alteration, the 
only statute touching the substantive Law on this point. 

Seo. 588. The question obviously presented by Sec. 84 



236 NATURE AND SOURCES OF LAW 

of the Judiciary Act was the meaning of '^ the laws '' of a 
State. Did it mean the body of rules which the State 
courts applied in deciding cases, or was its meaning lim- 
ited to the statutes of the State ? To use the German ex- 
pression, did it mean Mecht or Gesetzef The difference 
between *Hhe Law," which generally means the body of 
rules, and ^^ a law," which generally means a statute, has 
been noted.^ The term here, ^^ the laws," is ambiguous, 
and lends itself to either construction. 

Sec. 584. That the Congress which passed the Judiciary 
Act intended to limit ^* the laws " to statutes, seems very 
improbable ; if for no other reason, because in many of 
the States the statute Law was so meagre ; and for the 
first fifty years of the Government no such limitation was 
put on the expression ^^ the laws " by the Supreme Court 
of the United States. In no case did that court sanction 
a refusal by a Federal court to follow a rule laid down by 
the State courts. It is to be observed, however, that the 
only cases during this period which came before the Su- 
preme Court where any question as to following the 
decisions of a State court was presented, were cases con- 
cerning land or involving the interpretation of a State 
constitution or statute. 

Sbg. 585. In the year 1842, the case of Stp^ v. Tyson^^ 
came before the Supreme Court. It was a suit against 
the acceptor of a bill of exchange, which had been ac- 
cepted in New York. The plaintiff had taken the bill 
in payment of a preexisting debt, and the question was 
whether he was to be considered a purchaser for value. 
Judge Story, who delivered the opinion of the court, 
after speaking of the decisions of the New York State 

1 See Sec. 200, ante, * 16 Pet 1. 



JUDICIAL PRECEDENTS IN THE UNITED STATES 237 

courts as not being clear in favor of the defendant, went 
on to say that, ^^ admitting the doctrine to be folly settled 
in New York," it would not bind the Supreme Court of 
the United States ; and that Sec. 84 of the Judiciary Act 
was strictly limited to local statutes and local usages, and 
did not extend to contracts and other instruments of a 
commercial character. 

Sbc. 586. The doctrine of Sw^ft y. Ty»<m has not only 
been maintained by the Supreme Court, but it has been 
extended, though with many yaoillations, from *^ general 
commercial Law," through "rules of Common Law," and 
" general Law," to " general Jurisprudence " ; and that 
there is a distinction in the treatment of the decisions of 
State courts in Federal tribunals, that some will be fol- 
lowed and some not, is now too firmly settled to be 
shaken ; but it is not easy to draw the line, and I be- 
lieve that, except on one occasion, the Supreme Court has 
not, since Smft v. Ty$(m^ given any reason for the dis- 
tinction, or undertaken to justify it. It has said nc volo^ 
iicjubeo^ and that is the end of it. 

Sec. 587. The sole exception is in Baltimore dk Ohio 
Railroad Co, v. Baugh.^ It was there held that liability 
for injury, in Ohio, to the fireman of a locomotive engine 
by the carelessness of the engine-driver, was to be deter- 
mined by the " general Law," contrary to the Law laid 
down by the Ohio courts. The Supreme Court here, for 
the first and only time, gives reasons for following and 
extending the doctrine of Stvift v. TyBon. Those reasons 
are two : First. That, notwithstanding Swift v. Tyaon^ 
Congress has never altered Sec. 84 of the Judiciary Act. 
Second. The second reason is stated in the form of a 

1 140 U.8. 808 (1802). 



238 NATURE AND SOURCES OF LAW 

question: '^If to a train running from Baltimore to 
Chicago it [the Railroad Company] should, within the 
limits of the State of Ohio, attach a car for a distance 
only within that State, ought the Law controlling the 
relation of a brakeman on that car to the Company to be 
different from that subsisting between the brakeman on 
the through cara and the Company ? " ^ The answer to 
this last question would seem to be another question. 
^^ Ought the Law controlling the relation of a brakeman 
on a car to the Company to be different from the Law 
controlling the relation of another brakeman on the same 
car to the Company, because one has his domicil in Penn- 
sylvania and the other in Ohio ? " 

Sec. 538. Mr. Justice Field was unwilling to carry the 
burden of Swift v. Ty9(m any longer, and confessed openly, 
'^ mea cidpa^ mea maxima culpa^ In his dissenting opinion, 
he declared that Surift v. Tyson was indefensible from the 
beginning. He says : '^ I am aware that what had been 
termed the general Law of the country — which is often 
little less than what the judge advancing the doctrine 
thinks at the time should be the general Law on a par- 
ticular subject — has been often advanced in judicial 
opinions of this Court to control a conflicting Law of the 
State. I admit that learned judges have fallen into the 
habit of repeating this doctrine as a convenient mode of 
brushing aside the Law of a State in conflict with their 
views. And I confess that, moved and governed by the 
authority of the great names of these judges, I have my- 
self, in many instances, unhesitatingly and confidently, 
but I think now erroneously, repeated the same doctrine." * 

Sbg. 539. Among the causes which led to the decision 

ip.378. «P.401. 



JUDICIAL PRECEDENTS IN THE UNITED STATES 239 

in Swift V. TyHon^ the chief seems to have been the char- 
acter and position of Judge Story. He was then by far 
the oldest judge ia commission on the bench ; he was a 
man of great learning, and of reputation for learning greater 
even than the learning itself; he was occupied at the 
time in writing a book on bills of exchange, which would, 
of itself, lead him to dogpnatize on the subject; he had 
had great success in extending the jurisdiction of the 
Admiralty ; he was fond of glittering generalities; and he 
was possessed by a restless vanity. All these things con- 
spired to produce the result. 

Sec. 540. The judgment in Smft v. Ty$on seems at 
first view to have its root in the Blackstonian theory, 
which I have previously discussed, that judicial decisions 
are not sources of the Law, and, indeed, Judge Story 
says : ^* In the ordinary use of language it will hardly be 
contended that the decisions of courts constitute Laws. 
They are, at most, only evidence of what the Laws are, 
and are not of themselves Laws." But, in truth, Sw^ v. 
Tyion seems impossible to reconcile with this theory. 

Sec. 541. Suppose the English High Court should 
adopt an interpretation of an Act of Parliament; that 
interpretation would be adopted by all the lower courts, 
and would be enforced by the executive authority; it 
would be the Law in England. Suppose the High Court 
should announce a rule of non-statutory commercial Law ; 
that rule would be followed by all the lower courts ; it 
would be enforced by the executive authority ; it would be 
the Law in England. If the Supreme Court of the United 
States had to pass upon a case involving that statute, or 
upon a case on a contract made in England involving that 
general rule of non-statutory commercial Law, they would 



240 NATURE AND SOURCES OF LAW 

look in precisely the same manner, in the one case as in 
the other, to the decisions of the High Court to deter- 
mine the Law of England. 

Sbg. 642. Suppose, however, that the Court of Appeals 
in New York should adopt an interpretation of a New 
York statute or a rule regarding the creation of easements ; 
such a decision would he followed by all the lower courts 
of the State, and would be enforced by its executive 
authority ; it would be the Law in New York. And sup- 
pose, again, that it should announce distinctly a rule of 
non-statutory commercial Law ; such a decision would be 
followed by all the lower courts of the State, and would 
be enforced by its executive authority; it would be the 
Law in New York. But if the Supreme Court of the 
United States had to pass upon a case involving a New 
York statute or the creation of easements in New York, 
it would follow the decisions of the Court of Appeals of 
New York, while if called upon to pass upon a case aris- 
ing in New York under the non-statutory commercial Law, 
it would not follow the State decisions. 

Sec. 548. If ''the laws of a State '' in the 84th section 
of the Judiciary Act mean its statutes only, then the de- 
cisions of the State courts should stand alike, and none 
of them should have the binding weight that is now given 
to some of them. If, on the other hand, '' the laws " are to 
include ''decisions,'' the Judiciary Act would allow no 
difference between them and statutes. On the general 
question, therefore, whether decisions are sources of the 
Law, the doctrine of the Supreme Court of the United 
States in Swift v. Ty9on throws no light. If they are 
sources of Law, they should be followed even when deal- 
ing with non-statutory commercial matters. If they are 



JUDICIAL PRECEDENTS IN THE UNITED STATES 241 

not, theu they are not binding when dealing with real estate 
or the construction of statutes. The doctrine of Swift v. 
Ty$im is an anomaly, and does not lend a support to either 
theory. 

Sbo. 544. The language of the Supreme Court varies. 
When the court wishes to depart from the State deci- 
sions, it says, with Judge Story, that the decisions of 
courts *^ are, at most, only evidence of what the Laws are, 
and are not of themselves Laws/' On the other hand, 
when the court is about to follow the decision of the 
State court, it says : ^* Inasmuch as the States have com- 
mitted to their respective judiciaries the power to con- 
strue and fix the meaning of the statutes passed by their 
legislatures, this court has taken such constructions as 
part of the Law of the State. "^ Decisions of the State 
courts have ^^a binding force almost equivalent to posi- 
tive Law/'' The interpretation of the land Laws of a 
State *^ becomes a part of the Law of that State, as much 
so as if incorporated into the body of it by the legisla- 
ture." » 

Sbo. 546. But while the practice of the Supreme Court 
of the United States on questions like that raised in the 
'case of Swift v. Tysim is anomalous, and is inconsistent 
alike with the theory that decisions of courts make the 
Law, and with the theory that they are only evidence of 
the Law, there is a series of cases in that court of the 
greatest importance, which must find their support in the 
former theory. These cases are of the following charac- 
ter : The courts of a State have declared that a certain 

^ Carroll v. CarroU, 16 How. 276, 286. 

* League v. Egery^ 24 How. 264, 267. 

• Cftfifly T. Pridgeon, 4 Wall. 196, 20S. 



242 NATURE AND SOURCES OF LAW 

class of contracts is valid, a contract of the class is sub- 
sequently entered into, but, after the making of the con- 
tract, the State courts reverse their decision and hold 
that such contracts are invalid. Here, if the decisions 
are simply evidence of the Law, the Law, as declared by 
the courts in the later cases, must be considered to have 
been the Law from the beginning, and the contract to 
have been void at its inception; if, on the other hand, 
decisions make the Law, then the contract was good when 
made. The Supreme Court, in these cases, has thrown 
over fiction, has insisted upon looking at the truth of the 
case, and has held such a contract valid. 

Sec. 646. In 1858, Chief Justice Taney said,^ "The 
sound and true rule is, that if the contract when made 
was valid by the Laws of the State as then expounded by 
all departments of its government, and administered in 
its courts of justice, its validity and obligation cannot be 
impaired by any subsequent act of the legislature of the 
State or decision of its courts, altering the construction of 
the Law." 

Sec. 647. In the great case of Qdpche v. Dubuqus^ it 
appeared that the Supreme Court of Iowa had repeat- 
edly decided that municipal corporations had the constitu- 
tional power to issue bonds ; that subsequently the City 
of Dubuque had issued bonds ; but that afterwards the 
Supreme Court of Iowa had, in a very elaborate opinion, 
overruled its former decisions. The Supreme Court of 
the United States held the bonds good. The opinion of 
the majority, delivered by Swayne, J., is singularly feeble 
both in form and substance, while the dissenting opinion 
of Miller, J., is masterly. But it is not an uncommon phe- 

1 OMo IM. Co. Y. DeboU, 16 How. 416, 482. « 1 WaU. 176 (1864). 



JUDICIAL PRECEDENTS IN THE UNITED STATES 243 

nomenon for minority opinions to be far superior in force 
to those of the majority, and yet for the doctrine of the 
majority to be right, and in the end to prevail. 

Sec. 548. Mr. Justice Miller said : ^' I understand the 
doctrine to be in such cases, not that the Law is changed, 
but that it was always the same as expounded by the later 
decision, and that the former decision was not, and never 
had been, the Law, and is overruled for that very reason. 
The decision of this Court contravenes this principle, and 
holds that the decision of the Court makes the Law and, 
in fact, that the same Statute or Constitution means one 
thing in 1858, and another thing in 1859." That is 
exactly so. The majority opinion did necessarily mean 
that the courts make and change the Law, and because 
the majority recognized this, though dimly, it was right 
and has prevailed.^ 

Sec. 549. In Douglass v. County of Pike,^ in 1880, the 
language of the Supreme Court became firmer. 

^* The true rule is to give a change of judicial construc- 
tion in respect to a statute, the same effect in its operation 
on contracts and existing contract rights that would be 
given to a legislative amendment ; that is to say, make it 
prospective but not retroactive. After a statute has been 
settled by judicial construction, the construction becomes, 
so far as contract rights acquired under it are concerned, 
as much a part of the statute as the text itself, and a 
change of decisions is to all intents and purposes the same 
in its effect on contracts as an amendment of the Law by 

^8. P. Hcmemeyer v. Iov>a County, 8 Wall. 294 (1866) ; Thomson v. 
Lee, Id. 327 ; Mitchell v. Burlington, 4 Wall. 270 (1867) ; Lee County y. 
Sogen, 7 Wall. 181 (1869) ; CUy v. Lameon, 9 Wall. 477 (1870). 

•101U.S.677. 



244 NATURE AND SOURCES OF LAW 

means of a legislative enactment. . . • The new decisions 
would be binding in respect to all issues of bonds after 
they were made ; but we cannot give them a retroactive 
effect without impairing the obligation of contracts long 
before entered into. This we feel ourselves prohibited by 
the Constitution of the United States from doing." ^ 

Sbc. 550. If, after a State court has decided that cer- 
tain contracts are valid, a contract of 'the kind is made, 
suit is brought on it, and the court reverses its former 
ruling and holds the contract invalid, no appeal lies to 
the Supreme Court of the United States. This seems, at 
first sight, inconsistent with Gelpcke v. Dulmque^ but such 
is not, in fact, the case. In the provision of the Constitu- 
tion that no State shall pass any law impairing the obli- 
gation of contracts, ^* law " is construed to mean '* statute,'' 
a law formally passed by a legislative body, while the im- 
pairment in the case supposed arises from a change in the 
judge-made law, and therefore is not within the protec- 
tion of the Constitution.' 

1 See Thompson v. PerHne, 108 U.S. 806; 106 U.S. 580; Tafior t. 
YpHlanti, 106 U.S. 60; Cotinty of BalU v. Douglam, 106 U.S. 728; 
Oretn County v. Conntn, 109 U.S. 104 ; Anderson T. SaiUa Anna, 116 
U.S. 866. 

* The best statement of the situation created by Sutift ▼. T^Bon, and 
Gelpcke v. Dubuque, will be found in an article by WilUam H. Band, Jr., 
Esq., of the New York Bar, 8 Harrard L. Bev. 828. 



CHAPTER XI 

OPINIONS OF EXPERTS 

Sbo. 651. A third source of Law, and one of great 
importance, is found in the opinions of experts. Some- 
times these opinions have been taken up by the legislative 
organ of a community and published as part of the Statute 
Law. The most familiar and striking instance of this 
was when Justinian compiled the Digest from the treatises 
of the Jurists. Again, the opinion of a new and unknown 
writer is sometimes adopted and applied by a court, not 
because the author possesses any authority, but because 
his arguments and conclusions appear to the court to be 
sound, just as the arguments and conclusions of an advo- 
cate in a particular case might appear to be sound. 

Sec. 552. It is not the effect of opinions on the Law in 
either of these two modes that is to be considered here ; 
but, intermediate between them, stand the opinions of 
persons which carry a weight, because those persons are 
recognized experts. To use the common phrase, they are 
authorities. It is with the opinions of experts as au- 
thorities that we have here to deal. 

Sec. 558. In the physical sciences, authority had once 
great weight, but at the present day, as an ultimate prin- 
ciple, it is frankly and energetically repudiated. In the- 
ology, the extent to which authority should be admitted as 
a ground of belief has been a matter of the liveliest con- 
troversy. But whatever may be its value in theology and 

246 



246 NATURE AND SOURCES OF LAW 

kindred sciences, in Jurisprudence, at any rate, where our 
primary objects of contemplation are the rules laid down 
by the judges, and where the existence of those rules, and 
not their conformity to our notions of a divine ideal, is the 
chief topic of inquiry, authority is unquestionably a matter 
with which we have much to do, for authority is an im- 
portant source of the rules followed by the courts, — that 
is, of the Law. 

Sec. 564. One of the forms of authority, that which it 
bears when it takes the shape of Judicial Precedent, we 
have already considered. In the present chapter, we are 
to deal only with authority which does not take that shape. 
In a system where great respect is paid to Judicial Prece- 
dent, comparatively slight regard is likely to be rendered 
to opinions not coming in that form ; this we see in the 
manner in which the Common Law subordinates treatises 
to decisions. In Germany, on the other hand, where the 
decisions of courts do not have a binding force, the au- 
thority of jurists not occupying judicial position is often 
very great. 

Sec. 555. It must be observed that at the Common Law 
not every opinion expressed by a judge forms a Judicial 
Precedent. In order that an opinion may have the weight 
of a precedent, two things must concur : it must be, in 
the first place, an opinion given by a judge, and, in the 
second place, it must be an opinion the formation of which 
is necessary for the decision of a particular case ; in other 
words, it must not be obiter dictum. That is, over against 
Judicial Precedents stand not only the opinions of non- 
judicial persons, but the obiter dicta of judges. 

Sec. 556. I have spoken in an earlier place ^ of Savigny*8 

1 Seo. 203 et Beq. ante. 



OPINIONS OF EXPERTS 247 

theory that the opinion of jurists is the expression of the 
popular consciousness, and have ^hown that this is a fiction 
or, at best, an empty form of speech. I will not recur to 
it here. I shall deal simply with the undoubted fact that, 
besides Judicial Precedents, the opinions of persons learned 
in the Law are influential on its formation. 

Sec. 557. How are the opinions of experts made known 
to the courts? The treatises of text writers have been 
spoken of as the mode of communication. But it must be 
borne in mind that the greater part of most text-books at 
the Common Law, and the whole of many of them, are not 
devoted to the statement of such opinions ; they do not 
contain, nor profess to contain, any original or independent 
thinking or conclusions; they are simply collections of 
statutes and precedents; their merit or demerit lying 
solely in their good or bad arrangement. 

Sbc. 558. But a more important matter is that the 
opinions of experts are often communicated to the 
courts in other ways than through treatises. Of course, 
in primitive times, such communication was exclusively 
oral, and though, in the course of years, it has taken more 
and more a written, or rather a printed, form, yet a very 
important source of Law — and perhaps at the present day 
it is quite as influential as it ever has been — is the opin- 
ion of experts, not printed, and indeed not formulated in 
any express statement, but known or believed by the 
courts to be their general opinion ; such knowledge or 
belief being gained through some of the means by which 
knowledge or belief of general opinion is acquired. That 
the bar who practise before a judge would be universally 
or generally of opinion that a certain decision ought not' 
to be made, although not conclusive on his judgment, 



248 NATURE AND SOURCES OF LAW 

ought to have, and, what is more to our present purpose, 
does have, an influence on him, and an influence of a dis- 
tinctly more stringent character than the knowledge or 
belief that the unlearned laitj would disapprove of the 
decision. 

Sbg. 569. To say what makes one writer an authority 
in the. Law and another not, is as hard as to say what 
makes one man an authority in medicine or in *^ practical 
politics," while the opinion of another man has no weight 
in either. Authority is the result of reputation, and the 
causes why one writer has a reputation are, if not infinite, 
at least indefinite. Attempts to weigh the authority of 
jurists by any exact balance, or to bring them to any test, 
conventional or otherwise, is rare ; something of the kind 
was attempted in the later Roman Law. 

Sec. 560. I have spoken in a preceding chapter^ of 
the important place that the jurisconsults occupied in 
the later times of the Roman Republic ; how there was 
given to certain of them by the Emperors the ju% reiptm- 
dendi; and how the respansa of these favored jurists had 
probably the weight of Judicial Precedents. But there 
were other jurists, some of great reputation, who never 
possessed the Jus respandendi; the most famous of these 
was Gains. 

Sec. 561. In the later Empire, the Ju8 respondendi 
ceased to be given, and a natural consequence was that 
the writings of all jurists came to be considered as belong- 
ing to the same class, and to be distinguished only by the 
relative reputation of their authors. And the writings of 
the jurists were now practically the source from which the 
Law was drawn ; the Twelve Tables, even the Edict of 

1 Sec. 424, el teg. 



OPINIONS OF EXPERTS 249 

the praetors, bad retired into the background, and it was 
only through the commentaries and treatises of the jurists 
that they were brought to the notice of the tribunals. 
Authority was given by reputation. But how was repu- 
tation to be determined? The situation was very con- 
fused. The Emperors intervened. 

Seo. 662. In a.d. 821, the Imperial Government of 
Rome decreed that the notes of Ulpian and PauUus on 
Papinian should not be cited,^ but six years later it was 
decreed, ^' Universa^ quce $criptura Pavlli eontinentury recepta 
auctoritate firmanda 9unt et omni veneratione edehranda.^^^ 
A hundred years later, we have the celebrated Law of Cita- 
tions : ^' Papinianiy Pavlli^ O-aii, Ulpiani atque Modestini 
scripta universa firmamus ito, vtO-aium qiUB Pavllum^ Ulpi- 
anum et cuncto$ camitetur auetorttas^ lectionesque ex omni 
ejus opere recitentur. Eorum quoque icientiam^ quorum trae- 
tatus atque iententias prosdicti omnes 8uis operibus miscue- 
runt ratam e$se censemus ut Scoevolce^ Sabini^ Jvliani atque 
Mareelliy omniumque^ quo9 iUi cdebrarunt^ n tamen eorum 
lihriy propter antiquitatu ineertum^ codieum collatione firmen- 
tur.^ TJhi atUem diverwi %ententi(B proferuntur^ potior nu- 
merus vincat auctorum vd^ si numerus aqv^ilis sit^ €qu% partis 
prcBcedat auctoriiaSy in qua excellentis ingenii vir Papinianus 
emineaty quiy ut singulos vincit, ita cedit du4>bus, Notas etiam 
Paulli atque Ulpiani In Papiniani corpus factor (jicvt 
dudum statutum est^ prcedpimus infirmari. Ubi atUem 
pares eorum sententice recitantur^ quorum par censetur 
auctoritas quod sequi debeat^ digat moderatio judicantis. 
Paulli quoque Sententias nuper valere prcecipimus.^^ * 

Sec. 563. Justinian, when ordering the Digest to be 

1 Theod. Cod. I, 4, 1. "See Sohm, lost, f 17. 

« Id. 1, 4, 2. * Theod. Cod. I, 4, 8. 



250 NATURE AND SOURCES OF LAW 

compiled^ did away with the proyisions of the Law of 
Citations as it was called and directed the commisBioneis 
^ ea qu(B antea in notis JEmilii Papiniani ex Ulpiano et 
Paulo nee non Mareiano ad$eripta eunt^ quoe antea nuUam 
vim optinehant propter hanorem eplendidiuimi Papiniani^ 
non etatim reeptiere.*^ 

Sec. 564. After the reyival of learning, special author- 
ity was attributed to favorite doctors in some countries. 
Thus, in Spain, at one time ^ tribuitur vis legie^ non solum 
Jure CcBsareo et canonicOy sed et Doetorum interpretations- 
bus ; in OcBsareo^ Bartoh et post eum Baldo ; in canonico^ 
Johanni Andreas et post eum Panormitano.^^ ^ So in Por- 
tugal, '^ Lege enim Lusitana Judicibus mandatum est^ ut de- 
fieientibus legihus regni etjure dvili Momanorum ad Aeeursii 
glossas et Bartolum reeurratur.^'*^ 

Sec. 565. In some of the earlier civilians there are rules 
for marshalling authorities, but they are so general and 
vague as to have trifling practical value.* Duck's fifth rule 
is this : '^ Cum doctorum sententice inter sepugnantes reperir 
untur^ eos potissimum sequendos esse existimavit clarissimus 
Q-alliiB JurisconsuUuSy Outdo Coquillus^ qui dignitates et 
fortunas contemserunt^ qaales fuerunt Bartolus Oastrensis 
Speculator^ Masnerius^ Petrus Jacobin Carolus Molinceus^ 
aliiqu€y qui in jure investigando affectibus suis et sordibus 
non indulserunty 

Sec. 566. In the Common Law no rule has been laid 
down as to marshalling authorities according to their 
weight. Lord Eldon, in Johnes v. Johnes^^ is reported to 

1 A. Dock, De Aath. Jar. Civ. IT, c. 6, % 20. 

s Id. I, c. 8, § 6. 

* See 1 Henoch. De PraBompt. II, 71 ; A. Dock, I, c 8, $ 14. 

« 8 Dow, 1, 16. 



OPINIONS OF EXPERTS 251 

have said that '^ One who had held no judicial situation 
could not regularly be mentioned as an authority " ; but 
there is probably no marked distinction between a treatise 
written by one who is or has been a judge and one written 
by a man who has never held judicial office. 

Sec. 567. There is a shojl) colloquy reported in lorCt 
Case.^ ^^ Metcalfe (referring to Welsby's edition of 
Archbold's Criminal Pleading). Mr. Welsby, who may be 
cited as authority, comments on the words ^ utter or 
publish.' 

" Pollock, C. B. Not yet an authority. 

^^MetcaJfe. It is no doubt a rule that a writer on Law 
is not to be considered an authority in his lifetime. The 
only exception to the rule, perhaps, is the case of Justice 
Story. 

" Coleridge^ J. Story is dead.'* 

The reporter appends the following note : Reporter's 
Note. — This rule seems "more honored in the breach than 
in the observance." The annotations of Mr. Greaves, 
Russell on Crimes, and the learned work of Mr. Pitt 
Taylor on Evidence, are constantly cited in Crown cases ; 
and the writings of Chitty, Starkie, and also of Story, were 
referred to in the same way in their lifetime. 

Sec. 568. It is almost a matter of necessity that 
authority in some form, either in the shape of Judicial 
Precedents or in the shape of the writings of jurists, should 
be one of the sources of the Law. Legislation covers but 
a small part of the field, and, as we have seen, legislation 
has to be interpreted by the courts before it becomes a 
part of the Law. If judges were always going back to 
establish fundamental propositions by independent pro- 

1 2 Den. C. C. 476, iSS. 



252 NATURE AND SOURCES OF LAW 

cesses of reasoning, the work of the world wonld never get 
itself done. Take a simple case of a sale of goods — bow 
many questions may arise. What is a contract ? How 
far can an intention contrary to the words of the parties 
be shown? Is a delivery necessary to pass title? Was 
there in the eye of the Law a delivery ? When is one 
dispensed from keeping his contract? What authority 
has an agent ? If courts had to examine all these questions 
de novo in each case, and not take them as established by 
authority, an army of judges would not su£Bce to keep 
society moving. 

Sec. 669. Even when a judge is not following a 
judicial precedent or the opinion of any jurist, he is con- 
stantly acting on authority, on his own authority, so to 
speak. He remembers having arrived at certain results; 
he does not recall the reasoning by which he reached them, 
but nevertheless he acts upon them with confidence. ^^ We 
refer to a foregone process of inquiry, as a ground of 
present belief, in the faith that it was adequately per- 
formed, but without feeling the force of the reasons by 
which our mind was originally satisfied.'' ^ 

Sec. 570. The most striking difference between the 
Civil and the Common Law lies in the greater relative 
importance which, in the former system, is attributed to 
the opinions of the jurists as compared with prior deci- 
sions of the courts. In this, as in other matters, it is 
much to be regretted that the discussion of the compara- 
tive merits of the two systems has been carried on so 
largely upon a priori grounds. It is said that in such a 
matter the Common Law mvat have the advantage, and on 

^8ir O. C. Lewis, Inflnenoe of Authority in Matters of Opinion, c 2, 
§4. 



OPINIONS OF EXPERTS 253 

such another, the rules of the Civil Law mmt be better ; 
but whether they actually work better, is a matter of 
which little has been said, and in the ignorance which the 
lawyers of either system have of the practical working 
of the other, little can be said. One of the greatest 
services that could be rendered to the advancement of the 
Law would be for some intelligent and well-educated man 
to carry on real professional work, first under the Civil 
and then under the Common Law, or vice verna^ and to tell 
the legal world the results of his experience. 

Sbc. 571. There are three classes in a community who 
take part in the development and application of the Law, 
— the judges, the practising lawyers and the jurists — the 
accidental division of the second class in England into 
barristers and attorneys is, for our present purpose, unim- 
portant. In most of the countries where the Civil Law 
prevails, the three classes are distinct, and distinct from 
the beginning. In Germany or France, a man intending 
to devote himself to the Law begins his career either in 
the lower orders of the magistracy, or in the ranks 
of the advocates and notaries, or as a teacher and 
writer on the Law; from one of these occupations he 
seldom passes to either of the others ; and it is the 
latter class, that of the teachers and writers, who are 
the jurists and exercise the greatest influence on the 
development of the Law. 

Sec. 572. This must not be pushed too far. Among 
the Romans, the chief factor in the early development of 
the Law is commonly, and probably justly, considered to 
have been that of a succession of judges, the praetors, 
publishing the Edict and fashioning Prrotorian Law ; and 
the great work of introducing the Roman Law into Ger- 



254 NATURE AND SOURCES OF LAW 

many was, as I have said, performed by the doctors who 
were placed in judicial positions. 

Sec. 678. And at the present day, notwithstanding the 
tenacity with which most of the German writers still con- 
tinue to deny authority to Judicial Precedents, it is plain, 
from the increasing number of reports of decisions pub- 
lished upon the Continent, and the frequency with which 
they are cited, that the difference between the Common 
and Civil Law, though still existing, is less accentuated 
than it was some years ago. With every allowance, how- 
ever, a chief element in the development of the modem 
Civil Law has been the writing^ of jurists who have had 
no experience either on the Bench or at the Bar. 

Sec. 574. Under the Common Law in England and 
America, we have a very different state of things. There 
is not that line of demarcation, if not impassable, at least 
rarely passed, which in France and Germany separates the 
judge's career from the advocate's. The English and 
American judges have not been all their lives simply 
public officials to decide legal questions which are pre- 
sented to them; they have had to deal with affairs in 
practice at the bar. Since the great seal was taken from 
Archbishop Williams in 1625, no one other than a practis- 
ing barrister has been called to high judicial position in 
England in the Courts of Common Law or Equity, except 
Lord Shaftesbury, who was Chancellor in 1672-1673 for 
less than a year. Since that time, no one in England, and 
since the independence of the United States, no one with 
us, has held a seat in any superior court of Common Law 
or Equity, the judgments of which would have any 
weight as precedents, without having practised at the bar 
the profession of the Law. 



OPINIONS OF EXPERTS 255 

Sec. 675. There was one exception in England and one 
in the United States. The peculiar constitution of the 
House of Lords, by which persons not learned in the Law 
can vote on judicial questions, has continued in existence 
to the present day, but the last occasion on which such 
persons have in fact voted was in 1788. The like power 
in the Senate of the State of New York came to an end in 
1846. In a few of the States high judicial powers sur- 
vived in the Governor for some years, even after indepen- 
dence. Thus, the Governor of New Jersey, besides being 
Captain General, was also Chancellor and Surrogate- 
General. 

Sec. 676. But, further, in England and America, not 
only is there no line between the careers of judges and 
advocates, but there is no line between the judges and ad- 
vocates and the jurists. Indeed, a large proportion of 
those text writers who could properly be cited as authority 
have either filled high judicial position, or have been 
actively engaged in some branch of practice. Omitting 
the names of living writers, we have, in England, Bracton, 
Littleton, Coke, Hale, Doderidge, Gilbert, Foster, Black- 
stone, Feame, Hargrave, Butler, Preston, Wigram, Abbott, 
Sugden, Stephen, Byles, Williams, Blackburn, Benjamin ; 
and in the United States, Kent, Story, Redfield, Wash- 
burn, Rawle. 

Seo. 677. The Law of a country at any time is made 
up of the rules that its courts are then applying in the 
decision of cases. In countries where the Common Law 
prevails the courts draw those rules mainly, so far as they 
are not derived from statutes, from the former decisions 
of judges. In countries which have adopted the Civil 
Law they draw those rules mainly from the treatises of 



1256 »ATURE AND SOURCES OF LAW 

writers, without regard to prior decisions. What differ- 
ence in results is likely to arise from this difference in the 
sources ? 

Sec. 578. One thing strikes at first sight. The method 
of the Civil Law tribunal is more deductive than that of 
the Common Law court. The jurist works undoubtedly 
to a great extent hj induction. His general doctrines 
are not perceived by him intuitively. He considers 
cases of conduct, real or imaginary, and from them he 
extracts general rules, expressed, if he have the genius of 
the great Roman lawyers, in elegant propositions and 
definitions, and illustrated by apposite examples. But 
the result of his work, as it presents itself to the judge, 
who turns to him for instruction, is not a collection of 
concrete cases, but a series of general rules, and it is 
the natural tendency of the judge's mind to bring the 
case before him under one of those general rules, or, in 
other words, to fit it somehow into the system with which 
the writer has furnished him. 

Seo. 679. But the judge who is working with prece- 
dents in the form of earlier concrete cases is slow to accept 
any general doctrine or to lay down any rule as final. 
Each new state of facts brings a new element into the 
Law, and the old results are to be reconsidered in view of 
this new element. The principles extracted from the 
old cases are always being reexamined in the light of new 
facts. 

Seo. 580. Each system has its merits and its defects. 
The method of the Common Law is the more scientific, 
and it would be entirely so, were it not that it gives an 
artificial weight to prior decisions by assuming them to be 
correct. The Common Law judge is like an experimenter 



OPINIONS OF EXPERTS 257 

in chemistry, who is always testing his theory by new and 
varied experiments, but who is not ready enough to admit 
that the record of former experiments may be wrong ; 
while the Civil Law judge, on the other hand, is like a 
chemist who, having arrived at a theory, insists upon 
applying it as the true rule of nature. And the civilian 
has not the opportunity of discovering his mistakes which 
is given to the chemist. If the latter's theory requires 
that the union of two bodies should produce a blue solid, 
and, instead of that, it yields a yellow gas, the most obsti- 
nate of doctrinaires is driven to revise his theory ; but if 
in the Law a theory requires the decision that a certain 
transaction is right, it will be often difficult to demon- 
strate that the theory is wrong. The correctness or in- 
correctness of legal theories cannot easily be brought to 
the test of tangible proof. If one asserts a legal doctrine 
to be sound, he cannot be refuted by the assertion of some 
one else that it is not. 

Seo. 681. Of course, if the judge, be he of the Common 
or of the Civil Law, is a sensible man, he will not push 
his way of looking at things to an extreme. The Com- 
mon Law court will admit that a former decision may 
have been wrong ; and the Civil Law court will admit 
that a legal writer, though one of the admired masters, 
may have laid down a general principle too broadly or 
too narrowly ; but notwithstanding this, there will be a 
tendency the one way and the other, and this tendency 
will make itself felt. 

Sbg. 582. The Common Law system has one inciden- 
tal advantage. It establishes a test which is easily ap- 
plied to determine the comparative weight to be attached 
to opinions. It avoids that endless clash of opinions 



258 NATURE AND SOURCES OF LAW 

which prevails in those countries where there is no fixed 
precedency in the weight of authority, and where one 
doctor's opinion is as good as another doctor's opinion. 

Sec. 683. On the other hand, in a country like Ger- 
many, where each writer can emit his opinion, not only of 
what the Law ought to be, but of what the Law is, not- 
withstanding the judgment of Ober or Oberst tribunal to 
the contrary, and free from any conventional discredit, 
there is, possibly, a better chance in the end for a result 
to be reached which will be wisest as a final conclusion. 

Seo. 584. And yet, to a Common Law lawyer, con- 
sidering that the end of the Law is to work out the 
happiness of the community, and not to establish a system 
however elegant and logical, it is hard not to prefer the 
method of his own jurisprudence. In both systems the 
legislature sits supreme, to knock to pieces, at its will or 
whim, with equal hand, the precedents and theories of 
judges and jurists alike. It can correct any errors 
of judgment into which the courts may fall, and in that 
large class of cases where there is no fwdtu worthy of such 
a dens ex machinoj the measure of good order and certainty 
which is brought about by the Common Law system of 
precedent seems preferable to the wild waste of contend- 
ing doctors.^ 

Sec. 585. The inductive method of the Common Law 
makes the system more ^' elastic " ; the readiness to adopt 
a new decision as soon as made into the family of prece- 
dents, the fact that there is no rule in formal shape to 
which the decision of a court must confocm, makes it more 
easy to adapt the Law to the changing circumstances of real 
life; at the same time, from its being always ready to change 

1 But see Maine, Village CommoniUes (8d ed.), 48. 



OPINIONS OF EXPERTS 259 

the form of its general principles, it is inexact in its ter- 
minology. 

Seo. 586. The Civil Law, on the other hand, is simpler, 
easier to acquire, easier to apply in ordinary cases, and it 
has a more exact nomenclature. The uniformity in style 
and expression of the great Antonine jurists is very re- 
markable and could exist only where there was a per- 
fectly defined and universally recognized vocabulary. 
The fixity of statement and definition in the Roman Law 
has not, however, been an unmixed good. It established 
a strong, harmonious system, .which was a wonderfully 
good one, because of the ability of the men who framed 
it ; but, after all, they were men of the second century, 
not of the twentieth, and their system, while in many 
respects an admirable framework for modem law, has yet 
served to cramp it. 

Sec. 587. Sir Henry Maine attributes the ^^ wealth of 
principles '* in the Roman Law to the uncontrolled multi- 
plication of imaginary cases, because all combinations of 
fact were on the same footing, without regard to their 
truth. If this be correct, yet I doubt much whether it 
has operated to the advantage of the civilians. In the 
Common Law courts the arguments of counsel have 
always abounded in imaginary instances, and the judges, 
in their opinions, constantly suggest them. The argu- 
ment from analogy which fosters the use of imaginary 
cases flourishes nowhere more than in the Common 
Law. 

Seo. 588. The true distinction is not, I suspect, that 
the Common Law judge neglects imaginary cases, but 
that the Civil Law jurist is in danger of neglecting real 
cases. It is comparatively easy to frame a rule when you 



260 NATURE AND SOURCES OF LAW 

can state your own examples. Patting simple extreme 
cases, it is not difficult to draw a line between them, but 
when you come to the cases which real life presents, with 
their complications and limitations, the theorist is apt to 
divert his eyes. I venture to quote some words that I 
wrote many years ago : *^ There is something which gives 
a judge a great advantage over a text writer, an advan- 
tage of which it may be said that the more a man watches 
the processes of his own mind, or those of others, the more 
weight he is disposed to lay on it, I mean the circum- 
stances under which questions are presented to a judge for 
decision. . . • While the faculty of large generalization 
is perhaps the noblest of human reason, the power of 
sound generalization is perhaps the rarest. To keep 
close to facts in laying down principles, to resist the 
constant (often unconscious) temptation to overlook the 
limitations and qualifications of a doctrine, which would 
render its exact statement a most difficult and laborious 
task, but the absence of which makes the statement often 
false, or at best a useless platitude, is a quality given to 
few who deal with moral and legal subjects. I do not 
mean that judges are free from this common weakness 
of humanity, — far from it, but the facts in the case are a 
constant aid and warning. The judge has his facts given 
to him. The text writer makes his own typical cases, 
and the temptation to make them such as to render easy the 
deduction of general doctrines is well-nigh irresistible.*' 

Sec. 589. And here the admission of Bentham, the 
ablest, as he was the bitterest, of the opponents of judge- 
made law, is very noteworthy : " Traverse the whole Con- 
tinent of Europe, — ransack all the libraries belonging to 
the jurisprudential systems of the several political states, 



OPINIONS OF EXPERTS 261 

— add the contents all together, — you would not be able 
to compose a collection of cases equal in variety, in ampli- 
tude, in clearness of statement; in a word, all points 
taken together, in instructiveness, — to that which may 
be seen to be afforded by the collection of English Reports 
of adjudged cases." ^ 

Sec. 690. And there is unquestionably one evil caused 
by the habit of considering imaginary cases rather than 
real ones, — a tendency to develop distinctions purely 
theoretical and to complicate the Law with principles and 
deductions which have no place in the conduct of life, and 
this tendency certainly shows itself in the Civil as com- 
pared with the Common Law. Think, for instance, of the 
discussions and doctrines on necessary and impossible 
conditions, — on legacies if Titius goes to the moon, if 
Titius does not go to the moon, if Titius never dies, etc. 
So again, the subject of gratuitous loans has, as Judge 
Story says,' ^^ furnished very little occasion for the inter- 
position of judicial tribunals," but the civilians have de- 
bated on it at great length, discussing whether, if Caius's 
house be on fire, it is lawful for him to save an urn of his 
own in preference to a vase which he has borrowed from 
Balbus, etc., etc. 

Seo. 691. I have spoken of the advantage which the 
form of the Civil Law gives it over the Common Law, and 
the precision and exactness of its fundamental conceptions 
are often contrasted with the vagueness of the Common 
Law. But all this needs careful qualification. There is, 
in truth, no lack of precision in the theories of learned 
civilians, but the theory of one learned civilian will be 
precisely opposite to that of another. There will often be 

1 4 Benth. Works, 461. • Stozy, Bailin. ( 286. 



262 NATURE AND SOURCES OF LAW 

a multitude of writers, no two agreeing with each other, 
and without any common arbiter. 

SifiC. 592. Take, for instance, the leading topic of pos- 
session. Before 1808, when Savigny first published his 
treatise, not including the glossators, nor the other commen- 
tators down to the end of the fifteenth century, and exclud- 
ing also a great number of writings to which Savigny says 
it would be paying far too high honor to say of each sepa- 
rately that it was good for nothing, thirty-three authors 
had written on the subject. In the following sixty-two 
years, down to 1865, when the seventh and last edition of 
Savigny's book was published, one hundred and twenty 
more books and articles had been added to the list ; and 
before the beginning of this century there had been pub- 
lished over thirty more separate treatises on the subject, 
not including the discussions in the general works or the 
articles in the legal periodicals. More than forty years 
ago, Ihering was able to enumerate eight different theories^ 
on the reason for the protection of possession, to which eight 
theories he proceeded to add a ninth. Whether it is better 
to protect possession with nine inconsistent theories, or 
without any theory at all, is a question not to be answered 
offhand in favor of the civilian position. 

Sec. 593. On another matter, I may perhaps be allowed 
to quote from the same article which I cited a few moments 
ago : ^^ As to the comparative fair-mindedness of the judge 
and the jurist, there is something to be said on either side. 
Cases present themselves to the legal writer in a more 
impersonal manner. The parties are mere names to him. 
But, on the other hand, the useful conventionalities of a 
judge's position and of the judicial style, as well as the 
rapid succession of different questions which pass before 



OPINIONS OF EXPERTS 263 

him, indispoBe him from identifying himself personally 
with a pet theory, and brooding over it until it becomes 
distorted into an altogether undue importance, a tendency 
to which the solitary student or writer is in danger of 
yielding. Compare the general tone of our courts in 
dealing with the opinions of other tribunals, and that of 
the German jurists who, as has been said, seem to write 
mainly for the purpose of refuting each other, and one will 
be inclined to believe the atmosphere of a court room quite 
as favorable to unbiassed consideration of legal questions 
as that of the study. 

Sec. 594. ^^One thing more, judges, as a class, have 
brought to their tasks higher conscientiousness. The 
knowledge that a decision will have direct consequences, 
often of the most serious character, to actual human be- 
ings is a tremendous sanction for rendering right judg- 
ment. It is true that a feeling of the consequences 
sometimes unduly deflects the decision of a court ; but in 
a vastly greater number of cases it furnishes a motive 
for just judgment which the most light-minded man 
must feel. There is no such direct and impressive 
presence before the legal writer ; the careless statement, 
the hasty conclusion, the unverified authority, are apt 
to sit too lightly on the consciences of the writers of 
text-books." 

Sbg. 595. If hard cases make bad law, bad law makes 
hard cases. The temptation of professional men, judges 
and jurists alike, is to subordinate the welfare of persons 
subject to a system of Law to the logical coherency of 
the system itself, and there is more danger of yielding to 
this temptation when the question is whether an imaginary 
Numerius Negidius shall be condemned in a sum of imagi- 



264 NATURE AND SOURCES OF LAW 

nary sesterces, than when it is whether a real John Jones 
shall be mulcted so many real dollars. 

Sec. 596. The enormous number of judicial decisions, 
and the rapidity in their rate of increase, has been so great 
as to indicate that the function of the jurist wiU rise more 
and more in importance in the Common Law, from the 
mere fact that the mass of material will become too great 
for any one to cope with it all, and that it can be dealt 
with only by systematic study directed to particular parts. 
At the end of the eighteenth century the total number of 
printed volumes of reported cases in England, Ireland, 
the English colonies, and the United States of America 
was two hundred and sixty. At the end of the year 1865 
they had increased more than twelve fold to over three 
thousand, not including the Indian Reports, and at the 
end of the nineteenth century the published reports of de- 
cisions in the United States alone were contained in about 
six thousand volumes. 

Sec. 597. The work of the jurist is therefore likely to 
rise in importance during the coming years, and a cor- 
responding improvement in the quality of treatises on the 
Law may be confidently expected. If the Common Law 
has been wise in attaching great weight to precedents, it 
has certainly not held out sufficient welcome, I do not say 
to actual, but to possible, jurists. 

Sec. 597 a. Notwithstanding the difference in the com- 
parative weight attached to the opinions of judges and 
of jurists in the Common and in the Civil Law, it is a 
matter of prime importance to observe that in both systems 
alike the development of the Law has been mainly due, 
neither to the legislatures on the one hand, nor to the 
people on the other, but to learned men, whether occupy- 



OPINIONS OF EXPERTS 265 

ing or not judicial position. This is well brought out by 
Professor Munroe Smith in his valuable and interesting 
article on Problems of Roman Legal History, 4 Columbia 
Law Rev. 628. 



CHAPTER XII 



0U8T0M 



Sec. 598. Custom is another of the sources of the Law. 
The courts have adopted certain rules, not because any 
statutes have required them to do so, not because there were 
any precedents for such rules in the reports of decided 
cases, not because they found any doctrine calling for the 
laying down of the rules in the writings of jurists, not be- 
cause the rules recommended themselves to their moral 
sense, but because they found them followed, in society 
at large, or in some parts of it, in the intercourse of the 
members of the society with each other. Thus, in the 
Common Law, three days' delay in payment, called days 
of grace, are allowed on bills of exchange. The judges 
found this custom existing among merchants, and adopted 
it. 

Sbo. 599. Custom has often been declared to be the 
source of aU Law, except what rests upon statutes. In- 
deed, this may be said to be the commonest form of ex- 
pression. Thus Blackstone : ** This unwritten or Common 
Law is properly distingmshable into three kinds : 1. Gen- 
eral customs, which are the universal rule of the whole 
kingdom, and form the Common Law, in its stricter and 
more usual signification. 2. Particular customs, which 
for the most part affect only the inhabitants of particular 
districts. 8. Certain particular Laws, which by custom 
are adopted and used by some particular courts of pretty 

266 



CUSTOM 267 

general and extensive jurisdiction." He then refers to 
many doctrines of Law and says : *^ All these are doctrines 
that are not set down in any written statute or ordinance, 
but depend merely upon immemorial usage, that is, upon 
Common Law, for their support." ^ 

Sec. 600. And now I must return to Mr. James C. 
Carter's posthumous book. I have before spoken of it in 
connection with the question whether judges make Law. 
Mr. Carter denies that judges make Law ; he says that 
they merely declare or discover Law already existing. I 
have tried to maintain the contrary, and to test the correct- 
ness of Mr. Carter's theory. But Mr. Carter goes further 
and denies that custom is only one of the sources of non- 
statutory Law. He says it is the non-statutory Law itself, 
that it is the whole non-statutory Law. This view he 
presses with great energy. We must consider whether it 
is correct. 

Sbo. 601. I have spoken of Mr. Carter's fight, his 
successful fight, against the introduction of Mr. Field's 
Civil Code into New York, and how it led him to combat 
Austin's theory that all Law is the command of the Sov- 
ereign. Austin recognized that judges make Law, but he 
said that in making it they are obeying the command of 
the Sovereign, because whatever the Sovereign permits, he 
commands. 

Seo. 602. The true view, as I submit, is that the Law 
is what the judges declare ; that statutes, precedents, the 
opinions of learned experts, customs, and morality are 
the sources of the Law ; that back of everything lie the 
opinions of the ruling spirits of the community ; who have 
the power to close any of these sources ; but that so long 

11 BL Com. 67,68. 



268 NATURE AND SOURCES OF LAW 

as they do not interfere, the judges, in establishing Law, 
have recourse to these sources. Custom is one of them, 
but to make it not only one source but the sole source, 
the Law itself, requires a theory which is as little to be 
trusted as that of Austin. 

Sbo. 608. You will have observed a difference between 
the language used by Blackstone and Mr. Carter, and 
there is a difference in their theories. According to Black- 
stone, ancient custom is a source of the Law, but on this 
Mr. 'Carter says: **Such a limitation of custom in the 
making of Law seems to me to be without foundation, 
• • . pre$ent custom, provided it is established, is as 
efficient as if it were centuries old."^ And again Mr. 
Carter points out the novelty of his theory : ^ Ancient 
customs," he says, ^^ they [legal writers] have indeed 
regarded as having the force of law, but this quality they 
impute, not to the custom qtia custom, but to its antiquity; 
whereas the conclusion at which I arrive erects present 
existing custom as the standard of Law." ' 

Sec. 604. And on this point Mr. Carter's theory seems 
an improvement on Blackstone's. Law may rest now on 
statutes or precedents, and to the making of the statutes 
and precedents ancient customs may have contributed, 
but so far as custom is a source of the Law as it now 
exists, it is present custom. 

Sec. 605. But waiving this point, let us consider 
whether custom, and custom alone, is the Law. We shall 
all agree that Law is made up of those rules to govern 
the conduct of men, which the State will enforce, whether 
those rules be made by the judges or by custom or by 
anything else. 

1 Carter, 71. « P. 121. 



CUSTOM 269 

Sec. 606. Now custom is not optnian^ it is practiee, and 
the neglect to clearly grasp this fact seems to me to lie at 
the root of Mr. Carter's theory. Customary opinion is an 
incorrect expression. Custom is what men do^ not what 
they think. Mr. Carter sometimes recognizes this ex- 
plicitly. Thus, he says: ^ ** The simplest definition of 
custom is that it is the uniformity of conduct of all persons 
under like circumstances. . • . Conduct is some physical 
movement of the body." To put it in somewhat different 
words, the opinion of a community as to what a* man 
ought to do is not based on custom, unless there is a 
general practice. 

Sbc. 607. " Custom is effectual only when it is univer- 
sal, or nearly so. In the absence of unanimity of opinion, 
it becomes powerless, or rather does not exist.'' This is 
the language of Mr. Carter.' But at a later page he says: 
^^The characteristic in early and rude societies — it is so 
to a much less extent in enlightened society — is that 
customs, in many respects, are not settled and are in con- 
flict." ^ Here seems at once a contradiction. If customs 
are not settled, and are in conflict, they ai-e not universal, 
and are, therefore, not customs. How does Mr. Carter 
escape from this contradiction ? 

Sec. 608. If I understand him, and I think I do, it is 
in this way. Custom, he says, is universal conduct. But 
a question now arises which, in its present form, has never 
come up before. There is no actual practice, for the 
question, in its present form, is new, but there are prin- 
ciples of morality, chief among which are these, — that a 
man should get from another what he has a right to ex- 
pect, and that conduct should be judged by its conse- 

iPp. 128, 128. <F. 88. SRee. 



270 NATURE AND SOURCES OF LAW 

quences, — and that these principles of morality are put in 
general practice in the community, though not in the 
particular form that has arisen ; that it is the custom to 
act upon these principles, and that therefore a judge, de- 
ciding in accordance with these principles, is really basing 
his decision on custom. 

Sbg. 609. He illustrates this by a case : A man who 
had insured his ship did not disclose to the insurer a fact 
materially affecting the risk ; the fact, however, was 
notorious. Mr. Carter supposes a suit by the owner of 
the ship to be decided against the underwriter. This is 
what he says : *^ Was this case decided by custom ? Some 
would say it was not because, avowedly, there was no 
precedent, which is authenticated custom, nor any evi- 
dence of actual custom not to make disclosure of notori- 
ous information, and they would declare that it was a 
clear case where the judges had made the law out of 
their own heads, upon a simple consideration of whether 
the failure to disclose was right or wrong. That the 
decision was based upon the consideration whether that 
action was right or wrong is, in a sense, true ; but whose 
notion of right and wrong was it ? It did not come from 
on High. It was not sought for in the Scriptures or in 
any book on ethics. The judges, in considering whether 
the act was right or wrong, applied to it the method 
universally adopted by all men ; they judged it by its 
eonseqt^nees ; they considered that the underwriter, in all 
probability, and therefore presumably, knew of the special 
peril, unless he was utterly negligent of his business, 
which could not be supposed ; that therefore he had lost 
nothing by the act, nor in any manner changed his posi- 
tion. If we went no further, it would be manifest that 



CUSTOM 271 

custom decided the case, for to determine whether it was 
right or wrong by the (mstamary modes of determining 
right and wrong is to determine it according to custom. 
The court, indeed, declared that its decision was made 
upon principle^ but what is meant by this ? What is the 
import of this word * principle'? It has various mean- 
ings, but, as here employed, it denotes a proposition very 
widely true, and the truth of which is universally ad- 
mitted. The court in this case judged of the character 
of the act of concealment as we all, from the very con- 
stitution of our nature, judge of all conduct, ly iU canse" 
guences. It found that the underwriter had suffered no 
harm in consequence of the concealment, because he would 
have taken the risk, even if the knowledge had been dis- 
closed, and that it was a principle of law that a man could 
not fairly complain of the act of another unless he had 
suffered injury from it, but this was a principle of law 
only because it accorded with the universal custom of men." 
Sbg. 610. I accept the question of Mr. Carter's : 
^^ Whose notion of right and wrong was it ? " as bringing 
matters to a test. We all agree that many cases should 
be decided by the courts on notions of right and wrong, 
and of course every one will agree that a judge is likely to 
share the notions of right and wrong prevalent in the 
community in which he lives ; but suppose in a case where 
there is nothing to guide him but notions of right and 
wrong, that his notions of right and wrong differ from 
those of the community, — which ought he to follow — 
his own notions, or the notions of the community ? Mr. 
Carter's theory requires him to say that the judge must 
follow the notions of the community. I believe that he 
should follow his own notions. 



272 NATURE AND SOURCES OF LAW 

Sec. 611. To adopt Mr. Carter^s theory, and to say that 
the Law in such cases is based on custom, seems to me to 
overlook the fact that custom is conduct, not opinions 
or notions, and that Mr. Carter's view is fully as objec- 
tionable as Austin's that Law is the command of the 
Sovereign ; but, for the purposes of the discussion, I will 
assume that Mr. Carter's theory that the judg^ should 
follow the ideas of right and wrong prevalent in the com- 
munity in which he lives, rather than his own, does lead 
logically and properly to the result that Law is custom, — 
is that theory correct ? 

Sec. 612. A judge often decides, and properly decides, 
against his own opinion of right and wrong ; for instance, 
when he is compelled by the precise words of a statute. 
Let us see how a judge's mind works, and ought to work, 
when he has to pass on the question whether an act was 
right or wrong, and we will suppose his own opinion to be 
that it was wrong. 

Sbg. 618. He will first say to himself: — *^ Is there any 
statute of the State whose judge I am which declares that 
the act in question may be done ? If there is, however 
foolish and wicked such legislation appears to me, I must 
follow the statute, and abstain from deciding that the act 
was wrong. But I find no such statute." 

Seo. 614. He will next say: — ^*Is there any judicial 
precedent in favor of the act ? If there is, however much 
I may regret that my predecessors decided as they did, 
and although had I been in their place I should have held 
otherwise, yet I will follow the precedent. But I find no 
such procedent." 

Sec. 615. ^^ Although there is no precedent on the 
point, yet there may be a conaensua of judges in their dicta 



CUSTOM 273 

and of jurists in their writings against my notion. In 
face of the opinions of so many learned men, I ought to 
distrust my own judgment, I do distrust it, I should be 
slow to rely on it against theirs. But I find no such dicta 
of judges or writings of jurists." 

Sbg. 616. ^ Is there any actual practice in the commu- 
nity against my opinion ? If there is, may not my insisting 
on my opinion produce worse evils, by introducing change 
and confusion into daily life, than would be caused by a 
continuance of the practice ? For instance, although there 
be no statute or precedent as to the rule of the road, the 
universal practice, in most of the United States, is to drive 
to the right, and though I should think, adopting Mr. 
Carter's expression, that there would be better conse- 
quences if people drove to the left, as they do in England ; 
that the English practice is more in accord with the prin- 
ciples of utility, tends to produce the greatest happiness 
of the greatest number, is in short more moral ; yet the 
contrary practice having been thoroughly established here 
and forming part of the daily conduct of life, I should do 
more harm than good by interference. But in this case 
before me, I find no actual practice." 

Sbg. 617. ^ Although on this question I find no statute, 
no judicial precedent, no opinions of learned men, no ac- 
tual practice against my notion, yet I do recognize that 
the prevalent, perhaps the universal, opinion of right and 
wrong in the community on this matter is against me." 

Sbo. 618. Now what ought the judge to do ? Should 
he follow his own sense of right and wrong? Suppose 
that the general opinion in his community is that a harlot 
has a right to kill a man who has become tired of her com- 
pany, — should he so decide ? 



274 NATURE AND SOURCES OF LAW 

Sec. 619. Of coarse the motive of a judge's opinion 
may be almost anything, — a bribe, a soman's blandish- 
ments, the desire to favor the administration or his politi- 
cal party, or to gain popular favor or influence ; but these 
are not sources which Jurisprudence can recognize as legiti- 
mate. Is the opinion of his community on a question of 
morality, of right and wrong, not yet embodied in prac- 
tice, a legitimate source of Law to which a judge ought to 
subordinate his own opinion ? I know of no moralist or 
jurist who has answered this question in the affirmative. 
I do not believe Mr. Carter would have answered it in the 
affirmative, yet it seems the unavoidable result of his 
theory. Perhaps he would have said that the judg^ is 
appealing from Philip drunk to Philip sober, but, even 
assuming that custom embraces opinion and not merely 
practice, it is preaent actual custom which Mr. Carter de- 
clares to be the Law, not what aught to be custom, nor 
what will be custom. 

Seo. 619 a. Mr. Carter's view seems to amount to this : 
there are two or three general notions of popular positive 
morality with which the rules laid down by the judges 
(and legislators) are usually not inconsistent. His con- 
clusion is that all Law (statutory as well as non-statutory) 
is custom. I submit that his conclusion is not justified by 
his premise. 

Sec. 620. Although custom is not the Law, nor even 
the sole source of Law, it is undoubtedly one of the sources, 
and a very important source, of part of the Law. The 
Law is divided into substantive and adjective. Adjective 
Law, or, as it is technically called, procedure, embraces all 
that is necessary to enforce the substantive Law in the 
courts. It includes the forms of action, the written state- 



CUSTOM 275 

ments of the parties, the rules of evidence, the modes of 
appeal, and the enforcement of the judgments of the 
courts. I suppose that no laymen, and few lawyers whose 
attention has not been drawn to the subject, realize how 
large a part of the whole domain of the Law is occupied 
by procedure. Especially when we take into account how 
great has been the development and extent of the Law of 
evidence in the United States, a very large part of the 
rules laid down by the courts concern matters of procedure, 
and with procedure custom has had nothing to do ; except 
so far as it has been affected by statute, the adjective Law 
has undeniably been made by the judg^. Mr. Carter 
himself admits this in the most explicit manner. He says 
of the Law of Procedure that it is a ** quite distinct and 
very noticeable branch of Law, one which is involved in 
the daily work of the lawyer more than any other. . . . 
But it has no direct connection with conduct. Its rules 
are not rules of conduct. . • . The Law of Procedure can- 
not be created by general custom. • • . The actual work 
of shaping and adapting it should, for obvious reasons, not 
be undertaken by the Leg^ature itself, but should be 
delegated to the body best capable of performing it. This 
is the judges whose duty it is to apply it. . . . In all this 
body of contrivance, with its multitude of officers, many 
commands are prescribed concerning the duties of the 
officers and of the members of the community in relation 
to the public establishment, and a vast quantity of legal 
obligation and, therefore, of law is created ; but the nature 
of it is widely different from the law of custom which 
governs the private transactions of men."^ 

Sec. 621. In considering, therefore, how far custom is 

1 Pp. 288-240. 



276 NATURE AND SOURCES OF LAW 

a tonrce of Law, we are confined to ihe Bubstantive Law. 
In what ways is costom a source of the sabstantiye Law? 
I have denied the cUum of custom to be the only sooroe of 
the Law, but it is a very important source, neyertheless. 

Sec. 622. The part of the Law in which custom has 
the most influence is in the sphere of interpretation. The 
judges determine the construction of contracts, they base 
the construction upon the meaning of words, and the mean- 
ing of words, except when they are used technically or the 
parties to the contract are shown to have given them a 
special meaning, is established by general practice, that is 
custom, quern peneM arbitrium est etju» et norma loquendi. 

Seo. 628. Perhaps I ought to refer, in passing, to the 
doctrine put forth by the late learned chief justice of New 
Hampshire, Chief Justice Doe. He declared that the 
question of the meaning of a contract was a question of 
fact, not of Law. Of course he did not deny that it was a 
question upon which the judges must pass, but he said it was 
not Law but fact that they were passing upon. To dis- 
cuss what element of truth there is in this doctrine would 
lead us too far afield. Suffice it to say that in the domain 
of interpretation, so far as the judge is laying down a rule 
of Law, except where there is a statute or precedent to 
bind him, he is basing the rule on custom. 

Seo. 624. Another part of the Law in which custom 
plays an important part is in cases of negligence, cases 
which are occupying the courts to an alarming extent, 
threatening their efficiency in the administration of jus- 
tice generally. In determining whether a man has been 
reckless or negligent in doing or not doing an act, we do 
not inquire whether he has taken every possible precau- 
tion. The test is whether he has acted as a reasonable man, 



CUSTOM 277 

and this must be settled largely upon whether he has 
acted in accordance with general practice; that is, custom. 

Seo. 625. Sometimes the courts undertake to lay down 
a rule that certain acts or omissions to act amount, as 
matter of Law, to negligence. Thus in some jurisdictions, 
a man who, in crossing a railroad track, fails to stop, look, 
and listen, is, as matter of Law, negligent; and some 
courts have held that if a man riding in a railroad car puts 
his arm out of the window, he is, as matter of Law, guilty 
of negligence. When such a decision is first made, it is 
often based on general practice ; that is, on custom. 

Seo. 626. In most cases, however, the court instructs 
the jury that the party who is alleged to have been negli- 
gent was bound to act as a reasonable man, and leaves it 
to them to determine whether he has so acted. Here it 
is, perhaps, inexact to say that custom is a source of the 
Law, and that it would be better to say that it is a ground 
of the decision. 

Seo. 627. It is to be borne in mind that in all cases 
where custom is correctly claimed to be a source of Law, 
this may be true only of the first case in which a court 
lays down a rule, and that subsequent decisions may rest 
on precedent rather than on custom. 

Seo. 628. Aside from the classes which I have men- 
tioned, it is probable that the part which custom has in 
truth played as a source of Law has been much exaggerated. 
The contrary belief rests largely on a fiction. There is 
every reason to suppose that hundreds of rules in the sub- 
stantive Law originated in the courts, and that the bulk 
of the community had nothing to do with them and knew 
nothing about them. How can we believe that the Rule 
in Shelley's Case, for instance, had its origin in popular 



278 NATURE AND SOURCES OF LAW 

custom? Indeed, with many rules, sucli as the Rule 
against Perpetuities, we know the history of their origin 
and development and that they were the creatures of the 
judges. 

Sbo. 629. In a matter where the intention of the parties 
is the principal factor, they may hare intended to contract 
with reference to a practice in the community at large, or 
in a particular trade or occupation or locality. This is 
usually a question of fact. But sometimes when such a 
practice has become universal in the community, or in the- 
trade, occupation, or locality, the courts have laid down a 
rule that the custom shall be imported into the contract 
unless the contrary is proved. Here custom is a source 
of Law. But in cases not of contract the influence of 
custom upon the making of the Law is much less than has 
been sometimes supposed. 

Sec. 680. Mr. Greer ^ has some remarks on this point. 
He says : — " It is obvious that there is in principle a great 
difference between customs which create rights and obli- 
gations through the medium of a contract on the one 
hand, and customs which create rights and obligations, as 
it were directly and independently of any contract, on the 
other. Whether or not a custom should be treated as an 
implied term in a contract is, properly speaking, a ques- 
tion of fact in each case, part of the larger question, — 
What was the contract between the parties? Except 
that the decisions have established certain presumptions 
in favor of the customs of the trade, the effect of custom 
on contract is not a subject for general rules of Law, but 
for decision, according to the particular facts of each case. 
On the other hand, the rules which regulate the effect of 

1 Law Quart. Rev. 168. 



CUSTOM 279 

custom in creating rights and liabilities between people 
independently of any contractual relationship are entirely 
matter of law, not of fact. It follows that the considera- 
tions which apply to the solution of the question, When 
should a custom be deemed part of the Common Law ? 
are very different from those that are applicable when the 
question is whether a given custom is to be held to be 
part of a particular contract.*' 

Sec. 631. In other words, a great part of the duty of 
the courts is to determine the meaning of a party to an agree- 
ment, and to do this the customs of the community of which 
the party is a member, or of the class, as stock -brokers, to 
which he belongs or with which he is dealing, are facts to 
be taken into account like other facts. Sometimes a custom 
is so universal that the courts frame a rule of Law that 
certain agreements shall be presumed to have been made in 
accordance with it; and, as different forms of business arise, 
as undoubtedly they will arise, especially with reference to 
the use of new mechanical devices, such as telephones, 
or wireless telegraphs, customs will, as rules for determin- 
ing the meaning of agreements, be taken up into the Law. 

Sec. 6S2. But when questions come up of giving 
rights or imposing duties apart from contract, then we 
have a different state of things. Aside from the question 
of negligence, of which I have spoken, it would not be 
easy to find an instance where courts, at the present day 
(at least in Common Law countries), have had recourse 
to a custom to fasten a liability upon a man. 

Sbc. 633. One remarkable instance, however, in late 
years of the use of custom as a source of Law in matters 
non-contractual can be found — it is the introduction of 
the miners' customs in California. The discovery of gold 



280 NATURE AND SOURCES OF LAW 

brought, in 1849, a large and turbulent population into 
an almost uninhabited country; the civil authority could 
be but feebly enforced, and the miners made rules for 
themselves. These rules related not only to matters 
of contract, but also to questions of property and pos- 
session. They prescribed how possession was to be 
taken, how much could be taken into possession (four 
hundred feet by a discoverer and two hundred by a sub- 
sequent locator on a lode), and how possession was lost. 
These rules were adopted into the Law, and, though not 
formally enacted, they were recognized by the legislature 
and thus received a statutory sanction as sources of Law. 
By the Civil Practice Act of Calif omia of 1851,^ it 
is provided that, ^^ in actions respecting * mining claims,' 
proof shall be admitted of the customs, usages, or regula- 
tions established and in force at the bar, or diggings, 
embracing such claim ; and such customs, usages, or regu- 
lations, when not in conflict with the constitution and laws 
of this State, shall govern the decision of the action." In 
Yale's Legal Titles to Mining Claims and Water Rights 
in California, San Francisco, 1867, will be found an inter- 
esting account of these mining customs and their becoming 
Law. 

Sbc. 684. Not only does custom play a small part, at 
the present day, as a source of non-contractual Law, but 
it is doubtful if it ever did, doubtful whether, at all stages 
of legal history, rules laid down by judges have not 
generated custom, rather than custom generated the rules. 
It has often been assumed, almost as a matter of course, 
that legal customs preceded judicial decisions, and that 
the latter have but served to give expression to the former, 

1 Sec. 621. 



CUSTOM 281 

but of this there appears to be little proof. It seems at 
least as probable that customs arose from judicial decisions. 
Such was the opinion of Maine. In his Ancient Law he 
says : — ^^ Custom is a conception posterior to that of The- 
mistes or judgements. However strongly we, with our 
modern associations, may be inclined to lay down a priori 
that the notion of a custom must precede that of a judicial 
sentence, and that a judgment must affirm a custom or 
punish a breach, it seems quite certain that the historical 
order of the ideas is that in which I have placed them. 
The Homeric word for a custom in the embryo is some- 
times * Themis' in the singular, more often ^Dike,' the 
meaning of which visibly fluctuates between a ^ judgment ' 
and a * custom ' or * usage.' " * 

Sec. 685. Ihering, in his Kampf urn's Meeht^^ has 
pointed out how fallacious is the comparison between the 
growth of language and the growth of Law ; the supposition 
that in old Rome the Law that a creditor could sell his 
debtor into slavery was formed in no other fashion than the 
rule that cum governs the ablative. To have a right by 
Law or custom means that by Law or custom another 
man's freedom of action is restricted, that he must act or 
refrain from acting, not as he wishes, but as another 
wishes, and it is not probable that this abnegation of 
self arose quietly, but, on the contrary, that the assertion 
of superiority had to be made good by the forces of 
society being brought to bear. It does not seem likely 
that the part of the Law which does not merely give 
expression to principles for the interpretation of agree- 
ments, but which imposes duties as the consequence of 

1 Ancient Law, (11th ed.) 4. On Themia and Dike cf. Clark, Jurispru- 
dence, c. 4. < (10th ed.) betuq. 



282 NATURE AND SOURCES OF LAW 

occupying certain relations or doing certain acts, could 
have arisen from custom alone, without the aid of judicial 
decision. Take, for instance, the liability of innkeepers 
for goods stolen from their inns. This is said to rest on a 
custom, but it does not seem likely that innkeepers would 
voluntarily subject themselves to such a liability ; nor, to 
take another instance, that a man who had assaulted an- 
other or converted his chattels would make compensation, 
unless compelled by the courts. 

Sec. 686. What has been said of customs in general 
may be true even of many of the local customs which are 
so common in England. They may also have had their 
origin in decisions of the local courts. Thus, the custom 
of borough English that the youngest son should inherit, 
or the custom of London that if a horse left with an inn- 
keeper had eaten off his head, the innkeeper might sell 
him, or the custom in the forest of Hardwicke that any 
one stealing any commodity of the value of thirteen pence 
halfpenny ^^ either hand-habend, back-berand or confes- 
sand," instead of being hanged, should be beheaded in 
the town of Halifax,^ are all likely to have had their 
origin in judicial decisions. 

Sec. 637. In the Common Law, as has been said, cus- 
tom has been deemed a more copious source of Law than 
the facts will warrant, but, back of custom, the courts 
and writers have not felt called upon to go ; in Germany, 
however, there has been much discussion whether custom 
is a source of Law or whether it is only evidence of 
previously existing Law. 

Sec. 688. A theory which has widely prevailed in 
Germany is that custom is not a source of Law, but is 

1 Halifax and its Gibbet Law placed in a Trae Ligbt, Halifax (1761). 



CUSTOM 283 

only evidence or the means of acquiring knowledge of 
what the Law is ; that it is the conviction of the Volksgeist 
that it is necessary that a certain thing should be Law 
which makes it Law ; that custom is only evidence that 
there is such a conviction of the VolksgeisL This theory 
was first propounded by Savigny, and afterwards by 
Puchta, and the great reputation of these men and, at 
least in the case of Savigny, the deservedly great repu- 
tation, has caused the theory to find wide acceptance, not 
only in Germany but in other countries. 

Sec. 639. One objection to this theory is that it rests 
on a fiction. There is no such thing in rerum natura as a 
Volkageist having real consciousness and convictions. The 
fact is that certain individuals, exercising their separate 
wills, repeatedly do certain acts, and judges may consider 
with favor these modes of action and apply them as rules ; 
but the matter is not made easier by saying that such 
repeated acts are the ineans of knowing the necessary 
convictions of a non-existent entity. 

Sec. 640. As the views of the German philosophers 
which exercised an overmastering influence, even on such 
minds as that of Savigny, are becoming antiquated and 
are losing their following in their native country, the later 
German jurists are going back to the theory which pre- 
vailed before the rise of the so-called Historic School and 
are holding that it is custom which is a source of Law 
and not the Uelerzeugung of the Volksgeist,^ It must be 
said, however, that the Imperial Court seems to have a 
leaning for the Savigny-Puchta theory.* 

1 See 1 Windflcheid, Fand. § 16, note 1 ; Zitdmann, 66 Arch, f . civ. Fr. 
324 ; Rttmelin, 27 Jabrb. f . Dogm. 163. 

< See Zitelmann, ubi ntp., and also 12 Entscb. des Reicbsgericbts. Civ. 
204 ; 26 Entacb. Civ. 193. 



284 NATURE AND SOURCES OF LAW 

Sbg. 641. Customs, it is very probable, owed their 
origin in many cases to judicial decisions, but even in 
those oases in which customs may have preceded the 
decisions, they were often, in earlier days, taken up into 
the Law by the courts, not simply because they were the 
customs of the community, but because they commended 
themselves to the judges' own sense of right or policy, or 
frequently because the judges believed or feigned to be- 
lieve that they were of supernatural origin. But, more 
than this, in early times it was the same privileged class, 
generally sacerdotal in its character, which furnished both 
legislators and judges, and from the accounts that we have 
of the Hebrews, it is clear that it was not what was 
believed to be the customs of the people, but what was be- 
lieved to be the expressed will of God, that was taken up 
into the Law ; and, indeed, that the Law was antagonistic 
in the extreme to the beliefs and customs of the nation. 



CHAPTER XIII 

MOBALITY AND BQUITY 

Sec. 642. When a case comes before a court for deci- 
sion, it may be that nothing can be drawn from the sources 
heretofore mentioned; there may be no statute, no judicial 
precedent, no professional opinion, no custom, bearing on 
the question involved, and yet the court must decide the 
case somehow; the decision of cases is what courts are 
for. The French Code Civil says: ^^Lejuge qui rtfusera 
de jtLger sous prStexte du silenccy de Vol%cur%tS^ au de Tm- 
tufficiance de la loi^ p(mrra Stre pour9uivi comme eoupable 
de dSni de justice J*^ ^ And I do not know of any system 
of Law where a judge is held to be justified in refusing 
to pass upon a controversy because there is no person or 
book or custom to tell him how to decide it. He must 
find out for himself; he must determine what the Law 
ought to be ; he must have recourse to the principles of 
morality. 

Sec. 643. In organized communities, political or other, 
the courts, in laying down rules for the decision of cases, 
are hemmed in and limited in many ways ; the duty and 
responsibility of considering what rules they ought to 
apply is largely taken away from them, and there is 
imposed upon them, or they impose upon themselves, by 
reason of statutes, precedents, professional opinion or 

iArt4. 

285 



286 NATURE AND SOURCES OF LAW 

custom, lines of conduct to be followed without regard to 
their moral character; but where these limitations haye 
not been imposed, then it is safe to say that in all civilized 
societies the courts are impliedly directed to decide in 
accordance with the precepts of morality. 

Sec. 644. Of course, I take morality in its largest 
sense, and mean by moral conduct, right conduct. In 
many, perhaps in most, of the questions, which are raised 
in the Law, morality presents itself in the guise of public 
policy. But even when the motive of the judge is simply 
to bring one doctrine into harmony with another doctrine, 
or to extend a doctrine by analogy, he is acting in an 
ethical way, for it is a good thing in itself that the rules 
of the Law should be harmonious, and should be extended 
harmoniously. 

Sec. 645. It is from this source that a great amount of 
our Law is drawn. In fact it is the way in which most 
new Law is now brought in, exbept what is due to the 
statute-book ; and it should be observed that this source 
not only works alone when the others fail, but that when 
the others are in operation, this mingles with them and 
largely influences their direction and effect. Whether a 
statute shall be interpreted one way or another is often 
determined by the moral character which the one or the 
other interpretation will give to it; and there are few 
judicial precedents or professional opinions or customs 
whose position as sources of Law is not strengthened or 
weakened by the fact of their agreeing or disagreeing with 
sound ethical principles. In fact, in a large number of 
cases, the sources of the Law are indistinguishably joined. 

Sec. 646. Austin, in his Province of Jurisprudence 
Determined, having devoted the first lecture to a consid- 



MORALITY AND EQUITY 287 

eration of the Nature of Law, takes up in the second the 
question of the index to the unrevealed Divine Law, and 
discusses it at great length through three lectures ; as is 
well known, he arrives at the conclusion that utility is the 
index of the Divine Law and the test of morality. 

Sec. 647. It is hard to defend Austin*s consistency in 
thus giving up so large a part of the volume to a discus- 
sion on the test of morality. The main thesis of the book 
is to show that positive Law is the command of the 
Sovereign; that its existence and force are in no way 
dependent upon the ethics of its contents; and that posi- 
tive Law is the subject-matter of Jurisprudence as com- 
pared with the Science of Legislation. And this has 
often been remarked upon. Thus Sir Henry Maine: ^ — 
^^ The truth is that Austin's system is consistent with any 
ethical theory; and if Austin seems to assert the contrary, 
I think the cause is to be sought in his firm conviction of 
the truth of his own ethical creed, which, I need not say, 
was Utilitarianism in its earlier shape. Devotion to this 
philosophy, coupled with what I hold to be a faulty ar- 
rangement, has produced the most serious blemish in the 
* Province of Jurisprudence Determined.' The second, 
third, and fourth lectures are occupied with an attempt to 
identify the law of God and the law of Nature (so far as 
these last words can be allowed to have any meaning) with 
the rules required by the theory of utility. . • • Taken at 
its best, it is a discussion belonging not to the philosophy of 
Law, but to the philosophy of Legislation. The jurist^ 
properly so called, has nothing to do with any ideal stand- 
ard of Law or morals." 

Sec. 648. From Austin's point of view, his discussion 

1 Early Hist of Inst. 868, 860. 



288 NATURE AND SOURCES OF LAW 

of the test of morality may not be justifiable, but when we 
believe the doctrines of morality to be a source, and one 
of the main sources, from which the Law is drawn, they 
are as appropriate for the consideration of Jurisprudence 
as are the statutes, precedents, professional opinions, or 
customs to which the courts have recourse for their rules. 

Sec. 649. Indeed, if Jurisprudence is to be a progres- 
sive science, it must take cognizance of the changes which 
knowledge or ignorance has produced in human beliefs 
and ideids. Take three communities, let them have the 
same statutes and the other sources of Law the same, but 
let the courts of one of them adopt the Koran as its index 
of morality, another the Bible as interpreted in England 
one hundred and fifty years ago, and another the scheme of 
morals, whatever it may be, which prevails, say in France, 
at the present day, the Laws of those three communities 
will show before long a varying development. 

Sec. 650. What is the true test of morality is not a 
question which can be answered here. It is obvious that 
it is very important for the theory of the Law. To take 
an instance : In many of the States, the question of the 
liability of the Pullman Car Company for the loss by theft 
from a sleeping car of a commercial traveller's bag con- 
taining samples of hat pins, is a novel one, and the judges 
are or will be called on to make Law upon it. What 
question should a judge ask ? Should it be, ^^ What pro- 
tection of a sample bag is desirable to secure the greatest 
happiness of the greatest number?" or should it be, 
*^ What is my intuitive moral sense on the subject of Pull- 
man cars ? '* or again, should it be, ^* What is God's re- 
vealed or unrevealed will touching bagmen?" or again, 
*^ What dealing with drummers is most in accordance with 



MORALITY AND EQUITY 289 

the Freedom of the Will ?" or, '« What protection to hat 
pins is most according to Nature ?" or is it a mixed affair 
to which two or more of these tests should be applied ? It 
is conceivable that application of these different tests 
might lead to different results. 

Seo. 651. But although the test selected for determin- 
ing the morality of a course of conduct and, therefore, the 
propriety of a decision, is theoretically of the first im- 
portance, yet it must be admitted that the conscious 
adoption of one test rather than another by a judge is not 
of so much practical consequence as might at first be sup- 
posed, for, by a familiar principle of human nature, when a 
man thinks that a thing ought to be done, he will not find 
it difficult to make it stand all the tests of morality that 
may be applied to it, and he will come to the conclusion 
that the greatest happiness of the greatest number, the 
dictates of conscience, the will of God, the Freedom of 
Will, and Nature unite in demanding it.^ 

Seo. 652. Whatever may be the test to establish the 
ultimate principles of morality, the doctrine of utility 
must be all-important in working out details. But whose 
good should a court seek, the good of the community 
whose organ it is, or the good of the world at large ? 
Should it, for instance, give preference to the domestic 
over the foreign creditors of a bankrupt? The true 
doctrine, though I advance this with some diffidence, would 
seem to be that the position of the courts should be much 
the same as that of a private individual. With an in- 

1 It should be observed as an ezeose, if not a jiistification, for much of 
the talk about the Law of Nature, that if accordance with Nature be the 
test of morality, then it is not wrong to speak of Nature as a source of 
the Law. 



290 NATURE AND SOURCES OF LAW 

dividual, regard for himself, for his family, and for others, 
all go to make up a complete morality; so, with a judge, 
as an organ of the State, regard for the members of the 
State and for persons not members of the State should be 
joined. The science of ethics, whatever it may do in the 
future, has as yet made trifling progress in settling any 
practical rules for the decision of such questions. 

Sbc. 653. Equity. Equity is sometimes spoken of as 
one of the sources of Law, but it seems neither desirable 
nor possible to differentiate *^ equitable" considerations 
from other considerations looking to the general weal out 
of which the courts frame rules. 

Sec. 654. Equity with us consists of the rules that 
were brought into the English Law by the special court 
held by the Chancellor. 

Sec. 655. Austin and Maine take (Bquitas in the 
Roman Law as having an analogous meaning ; they apply 
the term to those rules which the pnetors introduced 
through the Edict in modification of tlie Jus civile. The 
analogy between the praetor and chancellor is certainly 
striking and had often been remarked before, as by 
Gilbert in his Lex PrcBtanOy but it seems to be an error to 
suppose that oequitcu had this sense in the Roman Law. 
Professor Clark doubts ^* whether cequitiu is ever clearly 
used by the Roman jurists to indicate simply a department 
of Law;"^ and an examination of the authorities more 
than justifies his doubt; oequitas is opposed to strictum ju%^ 
and, as Professor Clark says, varies in meaning ^^ between 
reasonable modification of the letter, and substantial jus- 
tice " ; and Kriiger appears to be right in taking (Bquitas 
as a frame of mind in dealing with legal questions and not 

1 Clark, Jorispradenoe, 367. 



MORALITY AND EQUITY 291 

as a source of Law.^ It is true that the prsetor's Edict 
was a field favorable for the exercise of this ^* sweet 
reasonableness," but it was not the only one, and in the 
constitution of Severus and Antoninus (a.d. 202), con- 
cerning the amendment of pleadings, csquitoi is given as 
a reason for going outside the provisions of the Edict in 
allowing amendments, ^^prout edieU perpetui monet auetari- 
t4U velju% reddentis deeemit (Bquitaa.**^ 

Sbo. 656. A chief object in these lectures has been an 
attempt to show that one of the main difficulties and 
causes of confusion in Jurisprudence has been the failure 
to distinguish between Law and the sources of Law. 
The Law of a country or other organized body of men is 
composed of the rules for conduct that its courts follow 
and that it holds itself out as ready to enforce ; no ideas, 
however just, that its courts refuse to follow are Law, 
and all rules which they follow and to which it enforces 
obedience are Law; and to introduce any notion of the 
Law of Nature or of nieht positivisehen Beeht into the 
conception of the Law is to take a step backward in 
Jurisprudence. It is depressing to see a recent writer 
like Mr. George H. Smith taking up this exploded super- 
stition, when the Germans who have so long labored 
under it are throwing off the burden.* 

Sec. 657. On the other hand, it is the failing of many 
advocates of codification to regard the Law too much as 
a fixed product of statutes, precedents, and customs, and 
not to take into sufficient account the growth and change 

1 Krilger, Geschichte d. Qaellen, § 17, pp. 126, 126. 

« Cod. II. 1, .3. 

* See Bergbohm, Jurigprudeng und Btichtf^hUosophie, passim. 



292 NATURE AND SOURCES OF LAW 

of the Law. This growth and change is not a mere 
weaving of spider wehs out of the bowels of the present 
roles of Law ; a sonroe of the Law, not the only source, bat 
a source and a main source, is found in the principles of 
ethics. These principles, therefore, are legitimately a 
part of Jurisprudence, and the more the bounds of Com- 
paratiye Jurisprudence are extended, the greater part ivill 
they play. 



APPENDIX I 
Pn U8U8 IN THE LATEE EOMAST EMPIRE 

Sec. 658. Of the Pit U9u% in the later Roman Empire 
and their legal position, we deriye most of our knowledge 
from passages in the Code and Novels of the Carpus Juris; 
the provisions of the Code touching the matter which ante- 
date Justinian are few. 

Sec. 659. Constantine (a.d. 821), at or soon after his 
conversion, issued a proclamation ^^ad Popuium^^* declaring 
that any one might leave property *^ sanetUsimo catholicas 
[^eeelesice'] venerabilique coneilio.^^ ^ The council seems to 
have been regarded as the corporate body of the church. 
This view, however, did not prevail. I am not aware of 
any other passage which indicates that the Church Uni- 
versal was regarded, in the eye of the Civil Law, as a 
juristic person. 

Sec. 660. The Emperors Honorius and Theodosius 
enacted (a.d. 409) that not over nine hundred and fifty 
deacons should be assigned to the Church of Constanti- 
nople and that ^^nulli alii earparatarum" beyond that 
number should any immunities be granted,' — thus ap- 
parently recognizing the deacons as members of a corpora- 
tion.B Later, the same Emperors (a.d. 428) spoke of 
^* divincB danU et venerahile% eeelence " as charged with the 
duty of repairing roads and bridges.^ The particular 
church or other ecclesiastical body appears to have been 

1 Cod. I, 2, 1. • See Cod. I, 2, 14. 

« Cod. I, 2, 4. * Cod. I, 2, 7. 



294 NATURE AND SOURCES OF LAW 

regularly considered as the corporate anit,^ and (a.d. 434} 
the Emperors Theodosios and Valentinian issued an edict 
permitting the clergy, or monks, or nuns to bequeath 
property to their church or monastery, and giving* the 
church or monastery its action to recover the property,' 
thus recognizing it fully as a juristic person; and it was 
enacted (a.d. 455) by the Emperors Valentinian and 
Marcian that any widow or deaconess or virgin dedicated 
to God, or " BanctimonialxB muiier^^' might leave proi)erty 
by will, ^* ecele9i(B vel martyrio vel clerieo vd monaeho vel 
pauperilnUy^ ^ and two days later, the objection having 
apparently been made that a ^ItpauperihuM might be held 
bad as ineertu pertania, it was enacted : ^* Id qwd pauper- 
{bu% testamento vel eodicttlii relinquitur^ nan ut incertiM 
pertonii relictum evaneteat^ %ed modi$ omnibvs ratum fir- 
mumgtie cansiatat,^^^ 

Sec. 661. The difficulty of administering a gift to an 
uncertain class who could not be considered as constitut- 
ing a juristic person seems to have been first felt in the 
case of gifts for the redemption of captives. The Emperor 
Leo enacted (a.d. 468) ^ that if a testator gave a legacy 
for the redemption of captives and named a person through 
whom the redemption should be made, such person should 
have the right to get the legacy ; but that if the testator 
had not named any one to take it, then the bishop should 
have the right to exact it from the heirs and should carry 
out the intent of the testator and render an account to the 
governor of the province. This ^^fatnUtas exigendi " gave 
legal personality to the bishop in his official character.^ 

1 See Cod. I, 2, 12. * Cod. I, 8, 24. 

« Cod. I, 8, 20. »Cod.I, 3, 28. 

• Cod. I, 2, 18. • Cf. Cod, I, 8, 48 (49) ; Nov. 131, 11. 



APPENDIX I 295 

Sec. 662. In the year 472, in the reign of the Emperors 
Leo and Anthemius, we find, for the first time, mention of 
xenodochia and ptochia^ or guest houses and almshouses, 
and of the privileges awarded to them.^ And in the same 
year, all the privileges granted *^ arphanotrophio sive asce- 
teriis vel ecclems aut ptochiis %eu zenodochiis ant monoMeriU 
atque ceteris haminilms etiam ac rebus juris eorum^ were put 
under the charge of Nico, a priest and orphanotrophus and 
his successors.^ This brings us down to the time of 
Justinian. 

Sec. 663. There was a great deal of legislation by 
Justinian on matters concerning the Church, much of it 
with reference to the alienation of ecclesiastical property, 
which was in general prohibited. This legislation is con- 
tained both in the Code and in the Novels. The first 
edition of the Code was published a.d. 529, and the 
second, repetitce prcelectionisy a.d. 534. The provisions of 
the Code concerning eleemosynary institutions are con- 
tained mainly in the second and third chapters of the first 
book. Gifts for ecclesiastical or eleemosynary purposes 
are said to be super piis causis^^ ek eiKreffeh 'xptla^ ^ and 
besides the objects that were enumerated in the edicts of 
Justinian's predecessors, eeelesice^ diviruB damij martyria^ 
arphanotrophia^ asceteria^ ptochia^ xenodochia^ moncLsteria^ 
we now find also noseomia^ ptochotrophia^^ zenones^ brepho- 
trophicL, fferontocomia.^ 

Seo. 664. Where the remains are so scanty, it is dan- 
gerous to speak with certainty, but it seems as if these 
various institutions were corporations with members, like 

» Cod. I, 8, 82 (88), 7. * Cod. I, 8, 41 (42), 8. 

* Cod. I, 8, 84 (86). • Cod. I, 2, 10. 

• Cod. I, 2, 10. • Cod. I, 2, 22. 



296 NATURE AND SOURCES OF LAW 

those of the Common Law and the secular corporations of 
the Romans, and not mere abstract conceptions, without 
individual members, like the modem German Stiftungen. 
Thus, after enumerating several of these eleemosynary 
institutions, Justinian adds, ^^ vel siquid aliud tale tHmtor- 
tium;^^ and later in the same edict, he speaks ^^domuum 
qtUB piii cansartm deptitatce ffunt,*'^ and in another edict, 
after speaking of gifts and legacies, eeclemt^ zenonibus^ 
etc., he goes on : ^^ Sive itaqae memaratii religiossimis lo- 
€18 vel eivitatibtu hereditcu sive legatum nve fideicommisium 
fuerit relictumJ*^ ^ And in a law passed A.D. 580, after speak- 
ing of gifts to several kinds of eleemosynary institutions 
which he specifies, he goes on: ^^''H airXm avanifiaa-l riaiv 
euay^criv fj Skrni ovk hirv^opeuiUvoi^ r&v iic ttXi^^ov? riOpoia^ 
fUifwv,^^ ' And in a new law, A.D. 584, he speaks of prop- 
erty granted in perpetuity : " T0i9 evaydariv oIkoi^ koX 
Tok avT&v dt/OTCurco-iv." ^ 

Sec. 665. We have seen that it had been declared in 
455 that a gift to the poor should not be deemed bad as 
made ineertia perionis^ but that nothing was done by way 
of creating a right to have such a gift enforced. This de- 
fect Justinian cured. By an edict (a.d. 531),^ after deal- 
ing with some special cases, he declared that if *Hhe poor *' 
simply were made heirs, the inheritance should go to the 
xenon of the city — ^^xenonem ^u$ eivitatis amnimodo 
hereditatem naneisci^^; and an even more striking rule had 
been established in the preceding year, that if any one 
should make Christ his heir, the church of the testator's 
domicil should be the heir; and if any archangel or 

1 Cod. I, 2, 22. • Cod. I, 3, 46 (46), 9. 

* Cod. I, 2, 23. Cf. Cod. I, 2, 10. « Cod. I, 8, 66 (67), 3. 

• Cod. I, 8, 48 (40). 



APPENDIX I 297 

martyr was named as heir, his oratory should be deemed 
the heir,^ 

Sec. 666. If the heirs of a testator did not carry out the 
will of the testator, for instance, in building a church or a 
zenodochium^ it was made the business of the bishop to 
bring them before the court (airairetv) and compel them 
to perform the will of the deceased.' 

Sbo. 667. The Noyels add but little to our knowledge 
of the constitution of eleemosynary institutions. We 
find the word eoUeginm used to indicate such a body; ' 
an action is given to a church against its ceeonami or ad- 
ministrators ; ^ and for certain transactions the consent is 
required, not only of the rulers of every ^^ venercMlU do- 
tniM,*' but also of the ^^ampKar pars in eis deservientium.^^ ^ 

Sec. 668. These eleemosynary institutions were, there- 
fore, probably regarded in the later Roman Empire as 
corporations. 

» Cod. I, 2, 25 (26). Cf. Nov. 131, 9. 
s Cod. I, 8, 46 (46). Cf . Nov. 181, 10. 

* Nov. 7, paaHm. 

* Nov. 7. 

* Nov. 120, 6 et 7. 



APPENDIX II 

EEREDITAS JACENS 

Sec. 669. ^ There are few Common Law lawyers who 
have nibbled ever so little in the pastures of the Civil Law 
who have not been fascinated with the conception of the 
hereditod Jacens. Beside the clumsy machinery of our 
Law for getting the property which has belonged to a 
deceased person home to those who are to have the benefi- 
cial interest in it, the conception of an entity which can 
continue the legal relations of the deceased towards per- 
sons and things until new relations of the living are es- 
tablished in their place seems one of the most philosophical 
and practically useful of legal conceptions, to have all of 
the advantages and few of the disadvantages that spring 
from making an abstraction into a legal person. But a 
slight examination shows that the Civil Law is no better 
off than ours, and that hereditas Jaeens has but a limited 
scope. 

Sec. 670. Let me first call attention to what becomes 
of a man's rights at Common Law upon his death. There 
is a great difference between real and personal property. 

Sec. 671. And first as to land. If a man dies intestate, 
there is no interval in the ownership of land ; the heir is 
at once seised of the land, he has seisin in law, he is the 
owner. The succession is not that of a universal suc- 
cessor ; the heir takes each parcel of land as a singular 

298 



APPENDIX n 299 

successor. It is true that until the heir entered into 
actual possession of the land, he did not, at Common Law, 
become a stock of descent, and on his death the estate in 
the land passed not to his heir, but to the heir of the 
ancestor last seised in fact, and if a stranger entered upon 
the land before the heir, there was said to be an allatement, 
and not a disseisin; but, in general, the heir's rights and 
remedies are the same whether he has entered or not.^ 

Sec. 672. The devisee of land is also a singular suc- 
cessor. A devisee ueed not accept a devise. Whether 
acceptance of a devise is a condition precedent to the 
seisin passing to the devisee is, perhaps, not entirely clear ; 
but even if it is necessary, yet there is no vacancy in the 
seisin ; if it is not in the devisee, it is in the heir. 

Seo. 678. As to personal property. Until the executor 
assented or intermeddled, or, in case of intestacy, until 
the administrator was appointed, the ordinary in England 
succeeded to the rights of the deceased, and now, by 
statute, the Judge of the Probate Court takes what the 
ordinary did formerly. The question never seems to have 
been discussed in the United States. 

Sec. 674. A difficulty under which we lie at the Com- 
mon Law from not having a legal entity corresponding to 
the popular idea of the ^^ estate*' of a deceased person 
appears after the legal title has become vested in the ex- 
ecutor or administrator, from the circumstance that there 
is no way in which the ^* estate " can be bound, otherwise 
than by a mortgage or pledge of the assets. For instance, 

^ In the case of escheat, there seems to be a real vacancy in the pos- 
session nntil the lord enters ; so, on the death of an individaal who is a 
corporation sole, until the successor is appointed ; and so, also, upon 
the death of a tenant pur auter vie, until the general occupant enters. 



300 NATURE AND SOURCES OF LAW 

suppose it is desirable that goods should be oared for, there 
is no way of biuding the estate to pay for it, the suit must 
be against the executor. It is true the executor has a 
right to compensate himself out of the assets of the estate, 
and that the warehouse-keeper can be subrogated to the 
right of the executor, but if the balance of the accounts 
between the estate and the executor is against the latter, 
there is nothing to which the creditor can be subrogated. 

Sbo. 675. Perhaps when it came to be applied, it would 
be found that the idea of an abstract entity in which re- 
sided the rights and obligations of the deceased, and of 
which the executor was the agent, however attractive in 
theory, might not work well in practice. Certain it is 
that the Roman Law did not rise to such a conception. 

Sec. 676. If the Law of Succession is one of the least 
admirable parts of our Jurisprudence, it is also not one of 
those parts of the Roman Law which are entitled to much 
praise. It was not till the time of Justinian, long after 
the period of the classical jurists, that an heir could accept 
an inheritance without making himself personally liable 
for all the debts of the deceased. As soon as he accepted 
the inheritance, he immediately owned the property, he 
was the one who sued to enforce all claims that the 
deceased had, and every claim of a creditor or legatee 
was a claim against him personally, which he had to 
satisfy in the same way as a debt which he had himself 
incurred. And yet the settlement of the estate could be 
worked out only through the instrumentality of the 
heir. 

Sec. 677. In the interval, as I have said, between the 
death of the ancestor and the moment when the heir ac- 
cepted the inheritance, the Romans placed the hereditoi 



APPENDIX n 301 

Jacensy — an expression, by the way, which does not occur 
in the Corpus Juris^ but is taken from the language of 
D. XLIII, 24, 18, 6, ''puta hereditas Jaeebat.'' 

Sec. 678. Whether the heredita$ Jacens is or is not a 
juristic person, yet in the sense common among the 
Romans, of persona as character, office, function, the here- 
ditas jcLcens has a persona. Whether it represents the per- 
sona of the ancestor or of the heir, has been disputed. If 
it is the latter, then the title of the heir relates back to 
the death of the ancestor, and the property passes im- 
mediately from the ancestor to the heir. If, on the other 
hand, the hereditas continues the person of the ancestor, 
then the succession passes, not directly from the ancestor 
to the heir, but through the hereditas. According to 
Ihering's view,^ which I am inclined to accept, the orig^al 
doctrine was that the title of the heir related back to the 
death of the ancestor, but that subsequently the theory 
that the hereditas jacens represented the ancestor was 
adopted and prevailed, some survivals of the older view 
remaining to mar the symmetry of the new doctrine. 

Sec. 679. To come back to the question whether the 
hereditas jacens is a juristic person, the subject of rights 
and duties. It has no organs through which it can ex- 
press volition ; no action seems to have been given to it ; 
nor does it appear to have been the subject of legal duties, 
to have ever been recognized as bound to do or forbear, 
or as an object of compulsion. By an immissio in bona^ 
the goods of a deceased person were sold and the pur- 
chaser became the universal successor of the deceased, but 
the hereditas Jaeens never seems to have been a party to 
the proceeding, nor to have been called upon for any action. 

1 AbhandloDgen aos d. rOm. B. § 140 et aeq. 



302 NATURE AND SOURCES OF LAW 

Savignyi imc[ Sohm' agree in denying that the hereditas 
jaeenM is a juristic person. But it must be admitted that 
it is often called so. As by Florentinus : " Heredttoi per- 
Bonx vice fungitur^ $ictU municipium et deeuria et $ocieta$;^ 
and frequently by modern civilians,^ and although it could 
not sue or be sued, it must, I suppose, have had a right 
to police protection like that awarded to the property of 
new-born children and infants,^ and so must be considered 
as having some legal rights and as being, therefore, though 
to a very limited extent, a juristic person. 

Sec. 680. In Scotland, which derives its Jurisprudence 
from the Roman Law, the hereditas JacenBy besides having 
the right to police protection, of which I have just spoken, 
seems to be the subject of a legal duty, for, in that coun- 
try, when the heir renounces, a decreet issues at the suit 
of a creditor of the deceased, cognitionU eausa^ contra here- 
ditatem jacentem et bona immobilia and other goods and 
gear appertaining to the defunct.^ 

1 2 Heut. r5m. Recht, § 102. 
sinst. {06. 

• D. XLVI, 1, 22. 

« See 3 WindBcheid, Pand. { 681. 

• See Seo. 66, anU. 

• 1 Enk. InBt. Book II, Ut. 12, {§ 47 et $eq.; DaUas, Styles (ed. 1607) 
214. 



APPENDIX in 
EECEPTION OP THE EOMAN LAW 

Sec. 681. Although the claim of the Emperors of Ger- 
many to continue the succession of the Roman Emperors 
naturally made them think and speak of the Roman Law as 
their law;^ although, in the second half of the twelfth cen- 
tury, Frederick Barbarossa, in deciding disputes in Ger- 
many, relied on rules of the Roman Law; and although, in 
course of time, there was formed a conception of imperial 
law (which, however, embraced not only the Cwrjpu% Juri% 
of Justinian, but also the laws of the German Empire) ; 
yet very much was wanting to the practical operation of 
these views, and throughout the whole of the Middle Ages 
there are but rare traces in Germany of the application 
of Roman legal doctrines in life and in the courts. 

Sbo. 682. About the middle of the fifteenth century, 
however, the German universities began to teach the Roman 
Law, at first in a sufficiently stupid manner, but afterwards, 
following the lead of Italy, more intelligently ; and in the 
great and, indeed, extravagant admiration of learning, 
characteristic of the time, men who had been educated at 

. ^ Thus, at the beginning of the eleventh ceniory, Otto m, during his 
stay at Rome, provided thus for the investiture of a judge: ** Tunc dieat 
imperator judUH : ^Cave ne aliqua oeeaHone JusHniani BaneU$$imi an- 
teceuarU nostrt legem auhverku,^ Tunc imperator . . ,det eiin fnanum 
librum eodicum et dicat: ^Secundum hune lihrum judica Bomam et 
Leoninam arbemque univeraumJ** Cited 1 Stobbe, Geschichte der 
deutochen Reohtsquellen, { 69, p. 618. 

808 



304 NATURE AND SOURCES OF LAW 

German or foreign uniyersities, and who were imbued with 
the doctrines of the Civil Law, came by rapid degrees to 
acquire Court favor, power and judicial position, and in- 
troduced into the practice of the tribunals elements of an 
entirely novel and foreign character. 

Sbo. 688. There is much to explain this. The German 
people were split up into a great number of States, many of 
them very petty, each with its own separate system of 
Law. Undoubtedly there was much unity of spirit in 
those systems, but this unity has been rather a discovery 
of modern times than what was then obvious. The philolo- 
gist can trace the close grammatical connection between 
the languages of two countries, and yet the inhabitants of 
one of the countries may be totally unable to understand 
those of the other. The like is true as to the Law. And 
further, in the rapid growth from barbarism to civilization, 
it was natural and laudable that aid should be sought from 
the only system of law of which anything was known that 
had prevailed among a civilized people. 

Sec. 684. But, none the less, the introduction of the 
Roman Law, instead of carrying out the convictions of the 
people, was extremely distasteful to them. To quote from 
Stobbe : ^* This law was and continued to be a foreign Law; 
the people did not know or understand it; it was centuries 
before the want of harmony which necessarily resulted 
from the mixture of heterogeneous elements was overcome. 
With nothing less than violence was the foreign Law 
brought in. While in the court and city tribunals it ob- 
tained an almost unlimited control, customary law and 
ancient usages held their own for centuries yet in the 
peasants' courts. ... By degrees only was the foreign 
law assimilated to the domestic, and not even to-day have 



APPENDIX III 305 

many legal principles, taken over from foreign law, become 
popular, that is, corresponding to a general legal feeling. 
• • . The jurists disputed over the interpretation of tins 
or that passage, and over the decision of controversies ; the 
people, without exception, had no interest and no under- 
standing for these moot questions and gave up all influence 
on the definition and development of its Law.'^^ 

Sbo. 685. Stobbe gives many instances of the dislike, 
and indeed hatred, of the Roman Law and its professors. 
As an instance, here is one more moderate in its tone than 
several others. " Oum jus munieipale servandum 9it^ et 
antique cansusttidineB pro UgihuB habende sint^ fit^ ut multa 
hit contraria fianty unde deeeptiones^ erroret et turbcB 
oriuntur. Hit enim juris professores nostrum morem ig- 
noranty nee etiam si sciant^ illis nostris consuetudinibus quic- 
quam trilmere volunt^^ * 

Sec. 686. Nothing could be more unlike what is styled 
customary law than the Roman Law as it was received 
by the jurists. Customary law so called is built up of 
practical rules taught by experience, but the Roman Law 
was accepted as a whole by persons who were utterly 
ignorant of many things, if not of most things, that it 
contained. It was accepted as a whole by men who had 
yet to learn the rules which it comprised, while in custom- 
ary law the rules come first and the system to unite them 
comes afterwards. 

Sec. 687. The view of the jurists themselves was not 
at all that they were the representatives of the people, to 
give effect to its legal customs by aid of their superior in- 
telligence and training; on the contrary they regarded the 
Roman Law as the only true Law and the customs as ir- 

1 2 stobbe, § 66, pp. 187, 180. * 2 Stobbe, { 64, p. 06. 



306 NATURE AND SOURCES OF LAW 

regularities to be regretted. To quote Stobbe once more: 
'^ In many writings and sayings they [the jurists] express 
the liveliest joy that they possess the Lege%y and that by 
them, with a bound, they have risen from the deepest bar- 
barism to civilization. But no one ever thought to ask 
the question how they got the Lege% and whether they 
had a right to apply them. ... In consequence of their 
measureless veneration for the foreign law, the jurists had 
utterly departed from the idea that the domestic German 
Law, which was expressed in general and particular cus- 
toms and statutes, was the original law, and that the 
Roman Law came to it in later times as an auxiliary law ; 
they had no feeling of the equal importance of the German 
Law. On the contrary, they argued as if the Roman 
Law, which was certainly older but which only at a late 
period had had any practical value for Germany, was 
the original, which, through particular German doctrines, 
had been modified or put out of use. Instead of saying 
that a Roman provision stood in contradiction with the 
German legal consciousness, so that its application was ex- 
cluded through German rules of Law, they completely re- 
versed the relation ; it was the rule of the foreign law 
which, through a German custom or a German statute, 
had fallen into disuse. They spoke as if, before the re- 
ception of the Roman Law, there had been no law at all in 
Germany, and as if everything of German Law which pre- 
vailed in practice and was not abandoned had to be treated 
as a mere irregularity. A consequence of these views was 
that they despised the unwritten law, the German customs, 
and regarded them, so far as they did not agree with the 
Roman Law, as evil customs." ^ 

1 2 Stobbe, { 66, pp. 112, 116-117. 



APPENDIX IV 
THE CHUECH OP ENGLAND 

Sbc. 688. The peculiar history of the Church of Eng- 
land, the compromise between temporal and spiritual 
interests which was effected at the Reformation, and the 
fundamental differences among its members as to the 
grounds on which its frame of government rests, make it 
difficult to say whether that frame, in the opinion of its 
judges, has its foundation in the revealed will of God or 
in Acts of Parliament. The range of opinion within it ex- 
tends from those dwellers in an ecclesiastical Tooley Street, 
who regard themselves as the remnant from which all other 
Christian bodies, Greek, Roman, and Protestant, are parted 
by schism, to that keeper of the King's conscience who 
said to a delegation of Presbyterians, ^^ Gentlemen, I am 
against you and for the Established Church, not that I 
like the Established Church a bit better than any other 
church, but because it is established, and whenever you 
get your damned religion established, Fll be for that too." 
Sir Robert Phillimore and Lord Westbury were both 
judges in the English Church, but it is likely that they 
held very different theories as to the grounds on which 
the hierarchy of that Church is based. 

Sec. 689. But it is not easy to believe that a religious 
organization, whose highest court is the Judicial Committee 
of His Majesty's Privy Council, was ever revealed directly 

807 



308 NATURE AND SOURCES OF LAW 

or impliedly from Heaven, and the true doctrine would 
seem to be that the English Church owes its constitution 
to the State, and that although, in the opinion of many of 
its members, it would be sinful in the State to give it any 
other constitution, yet the judges of the Church must look 
to the Law of the land, to the King's Ecclesiastical Law, 
to determine the nature of the organization whose judges 
they are, and that so long as the Church is established, it 
is practically impossible that it should be otherwise. The 
report of the Hampden Case will be found instructive on 
this point. 



APPENDIX V 
VISITORS 

Sec. 690. The distinction between administrative and 
judicial functions, when exercised by the same person, is 
happily illustrated in the case of the visitor of a college. 
Visitors have two functions. The first is to visit the 
college, propria motUy without being called thereto by any 
one. Such visitations were originally liable to great 
abuses. When the visitor, who was generally a bishop, 
wanted to go on a junket, he visited a college, with a 
great train of chaplains and retainers, and lived at free 
quarters, to the great oppression and impoverishment of 
the college. The founders of the colleges in Oxford and 
Cambridge, therefore, perceiving that visitations were not 
unmixed blessings, often provided, in establishing the 
statutes of their foundations, that a visitation should not 
be held more frequently than once in three or five years. 
The college was liable to support the bishop and to have 
every comer and nook poked into at his will in every 
third or fifth year ; but that once over, there was to be 
rest and recuperation during another three or five years. 
Visitations of this kind were called general visitations. 

Sec. 691. But besides this function of making a gen- 
eral visitation, a visitor of a college has another, a judicial, 
function. It is his duty to hear complaints of members 
of the college against the Master and Fellows, or other 

809 



310 NATURE AND SOURCES OF LAW 

governing body, of the Master and Fellows against any 
member, and of one member against another. These com- 
plaints can be made at any time, and the visitor can hear 
them at once. In hearing them he is acting in a judicial 
capacity, and his court is always open ; while at a gen- 
eral visitation he is acting in an administrative capacity. 

Sbg. 692. The difference between these two functions 
of a visitor of a college was pointed out by Lord Chief 
Justice Holt in the classical passage of his opinion in 
Phillips V. Bury.^ "Now, though the visitor be unre- 
strained by the constitutions of the college from visiting 
ex officio more than once in five years, yet as visitor he has 
a standing constant authority at all times to hear the 
complaints and redress the grievances of the particular 
members. • • • For visiting is one act in which he is limited 
in time ; but hearing appeids and redressing grievances is 
his proper office and work at all times.'' 

Sec. 693. The same learned Chief Justice's strong 
opinion on the immutable distinction between adminis- 
trative and judicial functions was shown by his answer to 
one who declared himself sent by the Holy Ghost to bid 
the Chief Justice enter a noUe prosequi in the case of a 
prisoner : " Thou art a lying knave ; if the Holy Ghost 
had sent thee, he would have sent thee to His Majesty's 
Attorney General and not to me, for the Holy Ghost 
knows well I have no power to enter a noUe prosequu'' 

1 2 T.B. 846, 348. 



APPENDIX VI 
AUTONOMY 

Sec. 694. It is said in the text ^ that the Germans do 
not attribute autonomy to ordinary private corporations, 
but there is a class of corporations, offenilichreehtliehen 
Corporatianen^ to which autonomy has been attributed. 
Guilds, ZUfiftey and the Universities belong to this class.' 
The power of independent self-government which bodies 
of this class possessed when they were originally formed 
and the slenderness of the tie between them and the State 
appears to have been the cause why they have been con- 
sidered as having autonomy.' Such corporations, if now 
formed for the first time, would probably be relegated to 
the class of private corporations and all autonomy denied 
them. It is difficult to see at the present day how the 
rules made by such a body differ from the by-laws of the 
latest telephone company, and why one should have au- 
tonomy and the other not. 

Sec. 695. The question which has been most discussed 
is whether the higher German nobility have autonomy ; 
that is, whether the power given to the heads of the 
families of the higher nobility, sometimes with, sometimes 

* 1 Stobbe, Handb. d. deatsch. Privatr. § 20, pp. 141, 142. 

• See Schroder, Lehrb. d. deatsch. Rechtsgesohiohte (3d ed.) § 61, 
pp. 638-636. 

311 



312 NATURE AND SOURCES OF LAW 

without, the consent of the other members of the family, 
to settle the order of deyolation of the family property, is 
to be considered as the offspring of their autonomy, or 
whether it is merely an instance of authority given by 
the State to a certain class to deal with property in a 
certain way. 

Sec. 696. Gerber has denied the existence of autonomy 
altogether, and although his remarks are aimed principally 
at the claim to it by the higher nobility, he seems to deny 
it also to any corporations. Most of the writers, however, 
allow autonomy to the higher nobility, but differ greatly 
among themselves whether a family of that nobility is a 
corporation, some thinking autonomy to be a privilege 
which can be given only to a corporation, others denying 
this. Gerber, although apparently without much follow- 
ing in Germany, seems to a common-law lawyer to have 
the best of the argument. 

Sec. 697. The modem German writers, both those who 
admit autonomy to a greater or less extent, and those 
who deny it altogether, agree upon the test to be adopted. 
^^The essential mark of the autonomic institution" 
QSatzung) is ^^that it has not the application of the Law, 
but the making of the Law for its object; that it establishes 
not legal relations but legal principles, and is not a legal 
transaction but an insUtution.'*^ But this does not help 
us forward much. The fact is that in early times there 
were bodies within the territorial limits of a State which, 
through their tribunals, exercised compulsion over persons, 
and yet these bodies were not the creatures of the State, 
and did not owe their authority to it. In the course of 
time, as civilization has progressed, these bodies have lost 
^ HoltoEendorfl, Lexicon, AuUmamie. 



APPENDIX VI 313 

their power of compulsion, except as they derive it from 
the State. If autonomy still exists in the higher German 
nobility, it is only a survival of early barbarism. 

Sbo. 698. Neither the Roman Law, nor the English 
Common Law, nor, so far as I am aware, the Law of any 
country on the continent of Europe, except Germany, 
knows anything of autonomy.^ 

Sec. 699. There does seem to be one case of real 
autonomy, though I am not aware that the word has been 
used in connection with it, a case where general rules in 
an express form are sources of Law to the courts of an 
organization, although they are made by the legislative 
department of another organization. I refer to a church 
which, while not being an organ of the State, is yet rec- 
ognized by the State as the only true Church. This, of 
course, is not so in the case of a State Church like the 
English, whose courts are His Majesty's Ecclesiastical 
Courts, which are at the mercy of Parliament, and which 
Parliament does not hesitate to alter in the most thorough- 
going manner ; witness the establishment of the Judicial 
Committee of the Privy Council as the supreme ecclesias- 



^ If ftutonomic Law has not been leduced to writing, it is nsoal to 
speak of ohservancet not of autonomy. 

On aatonomy see Gerber, Ueber den Begriff der Aatonomie (1864) 87 
Aich. fttr d. ciy. Prax. 36^2; Nachtrfigliche ErOrteningen (1869) 3 
Jahrb. ftlr Dogmatik, 411-448 ; Mauier, Ueber den Begrifl der Aatonomie 
(1866) 2 Kritiflche Ueberschaa, 229-209; Jolly, Das Hausgesete der 
Grafen von Giech (1869) 6 Kritische Uebexschaa, 830-384 ; 1 Stobbe, 
Handb. d. deutsch. PriTatr. f { 19, 20, pp. 129-148 ; 1 Winscheid, Pand. 
§ 19 ; Holtzendorfl, Enoycloi^idie (6th ed.) 670. On the question whether 
a family of the upper German nobility is a juristic person, see Mejer, 6 
Grtinhnt, Zeitschr. 229-269 ; in answer to Mejer, Beseler, lb. 640-666 ; 
and Gierke, lb. 667-699 ; and Mejer*s reply, 6 Grilnhut, Zeitsohr. 201-210. 



314 NATURE AND SOURCES OF LAW 

tical tribunal. An instance of what I have in mind is 
the Catholic Church in Spain, or the Mohammedan Church 
or Synagogue, or whatever be the proper designation for 
the body of Moslem believers, in Turkey. The canons of 
such a body are binding on the State courts, and yet the 
ecclesiastical council or the assembly of the Ulema is not an 
organ of the State. We may say of these rules, as Austin 
says of all Law, that inasmuch as the State could, if it 
would, forbid its courts to follow them, they must be con- 
sidered as established by the State, but this mode of ex- 
pression does not correspond to what is the opinion of the 
judges of the State, or of those to whom it administers 
justice. 



APPENDIX VII 
RULES OP CONSTRUCTION 

Sec. too. In statutes any rules of interpretation ever 
suggested have been of the most general character, and 
the same is true of legal writings generally ; but in two 
classes of instruments, deeds of real estate and wills, par- 
ticularly the latter, the limited character of provisions, 
probable or possible, causes language of a simili^r nature 
to be often employed, and thus gives opportunity for the 
establishment of rules of construction. 

Sec. 701. The making of these rules was at one time 
carried too far in the Common Law ; they were often pushed 
into such refinement that they lost their practical value, 
and, what is more, they sometimes attributed to a testator 
the very opposite of the intention which he was likely to 
have had, as with the rule that the words ^* dying without 
issue " meant an indefinite failure of issue. Against this 
disposition there has of late years been a decided reaction 
on the part of the courts. Judges have spoken with con- 
tempt of the mass of authorities collected in Mr. Jarman's 
bulky treatise on Wills, have declared that the mode of 
dealing with one man's blunder is no guide as to the mode 
of dealing with another man's blunder, and especially have 
said that each will is to be determined according to the 
intention of the testator, and that the judicial mind should 
apply itself directly to that problem, and not trouble itself 
with rules of construction. 

816 



316 NATURE AND SOURCES OF LAW 

Sec. 702. And yet it may be doubted whether the 
pendulum of judicial theory and practice has not swung too 
far in this direction. It undoubtedly sounds vety prettily 
to say that the judge should carry out the intention of the 
testator. Doubtless he should ; but some judges, I venture 
to think, have been unduly influenced by taking a fiction 
as if it were a fact. As is said in the text with reference 
to the legislature, when a testator has a real intention, it 
is not once in a hundred times that he fails to make 
his meaning clear. For instance, if a testator should 
have present to his mind the question whether a legacy to 
his wife was to be in lieu of dower, it is almost incredible 
that he should not make what he wished plain. When 
the judges say they are interpreting the intention of a 
testator, what they are doing, ninety-nine times out of a 
hundred, is deciding what shall be done with his property 
on contingencies which he did not have in contemplation. 
Now for cases in which a testator has not provided, it may 
be well that there should be fixed rules, as there are for 
descent in cases of intestacy. 

Sbg. 703. It would seem that the first question a judge 
ought to ask with regard to a disputed point under a will 
should be: *' Does the will show that the testator had con- 
sidered this point and had any actual opinion upon it ? " 
If this question be answered in the affirmative, then there 
is no doubt that the solution of the testator's intention 
must be sought in the will. But in the vast majority of 
cases this is not what has happened. What the judges 
have to do is, in truth, to say what shall be done where 
the testator has had no real intention ; the practice of 
modern judges to which I have alluded is to guess from 
the language used in the particular will what the testator 



APPENDIX VII 317 

would have meant had he had any meaning, which he had 
not; the older practice was to look for an established 
rule of construction. In the modem practice the reasoning 
is often of the most inconclusive character, but the judges 
have got to decide the case somehow, and having turned 
their backs upon rules of construction, have to catch at the 
slightest straw with which to frame a guess. 

Seg. 704. Take, for instance, t1|Q word ** heirs," so 
often, indeed almost always, put into a will to fill out the 
final limitations. There are jurisdictions where no counsel 
dares to advise on what is to be done with property that 
is bequeathed to ^^ heirs." The judging of each will by 
itself leads necessarily to the bringing up of each will to 
be judged, and is responsible for a great deal of family 
dissension and litigation. 

Sec. 705. That the unsatisfactory character of many 
of the rules for the interpretation of wills is largely re- 
sponsible for their present unpopularity with the courts 
cannot be denied ; but I only wish to point out that what 
many judges are setting up against the rules of construc- 
tion of wills is, not their opinion of what testators really 
intended, but their guess at what the testators would have 
intended if they had thought of the point in question, 
which they did not, a guess resting often upon the most 
trifling balance of considerations. 



320 NATURE AKD SOURCES OF LAW 

my opinion is, that nan user may be such as to render them 
obsolete, when their objects vanish or their reason ceases." 

Sbc. 710. In 1826 ^ the coart refused to declare obsolete 
a statute passed in 1722. Tilghman, C. J., said : ^ It 
must be a very strong case, to justify the court in decid- 
ing that an act standing in the statute book, unrepealed, 
is obsolete and invalid. I will not say that such a case 
may not exist — where there has been a nan ruer for a 
great number of years — where, from a change of times 
and manners, an ancient sleeping statute would do great 
mischief, if suddenly brought into action — where a long 
practice, inconsistent with it, has prevailed, and especially 
where, from other and later statutes, it might fairly be 
inferred that, in the apprehension of the legislature, the 
old one was not in force. But this is not the case with 
the act of the year 1722. Its provisions are not un- 
suited to modern times." 

Sec. 711. In 1858^ it was sought to enforce a statute of 
1819 limiting auditors' fees to $2 per diem. Woodworth, 
J., delivering the opinion of the Supreme Court said: *^For 
many years this Act of Assembly was lost sight of — was 
omitted from our digests — and would seem to have been 
overlooked by this court in BaldumCe Estate^ 4 Barr, 248, 
and perhaps in other cases. It is said, in view of these 
circumstances, that the Act is obsolete or repealed by nan 
user. On the other hand it is maintained that an Act of 
Assembly cannot be repealed by nan ueer. Though I do 
not think this Act is repealed by nan vMer^ I cannot assent 
to the doctrine that the usages and customs of an advanc- 
ing people are incapable of displacing an Act of Assembly 

1 Wrighl y. Crane, 18 S. ft B. 447, 462. 
• ParUf's AppeaU, 80 Pft. 406, 408, 400. 



APPENDIX vm 321 

that has become unfitted for modem use.'* The learned 
Judge then quoted Chief Justice Tilghman's language 
given above, and afterwards continued : ^* The notion that 
statutes are not repealable by nan u$er is founded on two 
cases of not very high authority, 4 Yeates, 181, 212,^ both 
of which depend on an oUter dictum in White v. Booty 
2 T.R. 275, a case that was overruled in Leigh v. Kewt^ 
8 T.R. 864. A proposition no better supported cannot 
prevail against the clear reasoning of Chief Justice Tilgh- 
man in the case already cited from 13 S. & R. ; but we quite 
agree with him, that it must be a very strong case in which 
we would set aside a statute on that ground, and we do 
not think this is such a case.'' The court, however, came 
to the conclusion that although the Act of 1819 was in . 
force it did not apply to the case before it. 

Seo. 712. In 1882 > the court said of a statute of 1834 : 
^^So the law is written, and neither the overseers of the 
poor nor the courts can treat it as obsolete ; '' and in 1884' 
a statute of 1721 forbidding any one to sell fireworks in 
Philadelphia *^ without the Governor's special license" 
was held to be in force. The court say : " It was long 
ago settled that an Act of Parliament cannot be repealed 
by non tuer. That this is also the rule in this State ac- 
cords with reason and the absence of authority to the con- 
trary. The settled rule is that a statute can be repealed 
only by express provision of a subsequent law, or by neces- 
sary implication."^ 

Sbc. 713. Maryl4ind. In 1829^ Bland, C, after re- 

1 ated Sec 700, ante. * Kitchen ▼. SmUh, 101 Pa. 462, 456, 467. 

* Homer y. Common%oeaUh, 106 Pa. 221, 226. 

« See also Heidenwag v. Pkiladelphiay 168 Fa. 72. 

* Snowden ▼. Snowden^ 1 Bland, 560. 



322 NATURE AND SOURCES OF LAW 

f erring to cases in England, where it was supposed that 
the doctrine of desuetude had been applied, and saying, 
^*Our own act of 1747, e. 3, § 10, which positively pro- 
hibits clerks and registers from suffering the papers 
and records to be taken out of their offices, appears to 
have been so long and so generally disregarded as to 
have fallen into oblivion," goes on thus : ^* These prece- 
dents would seem to sanction the position that a positive 
legislative enactment may be virtually repealed by a long, 
general, and uninterrupted course of practice. But they 
are precedents which I should feel a great repugnance to 
adopt and enlarge upon. . • • There can be no difference 
between the power to declare an Act of Assembly obsolete 
and the power to enact a new law. The power to repeal 
and to enact are of the same nature. I shall, therefore, 
always consider an express provision of a constitutional 
Act of Assembly as an authority superior to any usage or 
adjudged case whatever." ^ 

Sec. 714. Iowa. The Supreme Court of Iowa in 1887* 
held that a provision in the Code of 1851, authorizing the 
proceeding against a distillery as a nuisance, was not to be 
considered repealed by non tuer^ because no action had 
ever been taken under it, and, referring to an earlier case 
in Iowa,' which had been cited in support of the doctrine 
of repeal by nan user, they say : ** It is not said that the 
statute was repealed by nan u%er alone, and it cannot be 
presumed that the court intended to present such a 
thought," and they declare that the repeal of the statute 
discussed in that case was by a later statute and not by 
mere nan u%er. 

1 See 7Ym y. Shaw, 68 Md. 1, 8 (1887). 

* Pearwm y. InUmational DUtillertf, 72 Iowa, 848, 867. 

• mu y. Smith, MorriB, 70 (1840). 



APPENDIX IX 
KENTUCKY LAW OF NON-CITATION 

Seo. 715. However excessive may have been the def- 
erence paid to English authority by courts and lawyers 
in the older parts of the country, there was an exhibition 
of the contrary feeling on the frontier. The Kentucky 
Legislature, in 1808,^ enacted ^' that all reports and books 
containing adjudged cases in the Kingdom of Great 
Britain, which decisions have taken place since the 4th 
day of July, 1776, shall not be read nor considered as 
authority in any of the courts of this Commonwealth, 
any usage or custom to the contrary notwithstanding." 

Sec. 716. In the same year in which this statute was 
passed, the case of Sickman v. Boffman^ came before the 
Court of Appeals. Counsel offered to read from 8 East 
part of an opinion which recapitulated the adjudged 
cases. The Chief Justice stopped him. Counsel urged 
that they did not reply upon the opinion, that they only 
used the book to show what other books contained, and 
that the legislature had no more power to pass the statute 
than they would have to prohibit a judge the use of his 
spectacles. But the court said: ^The book must not be 
used at all in court ; " and a like decision was made later 
in the same year.' 

1 Moiehead & Brown's Stats. 618. • Haxd. 848, 864. 

* QollaHn v. Bratfford, Hard. 866 n. 



324 NATURE AKD SOURCES OF LAW 

Sec. 717. In 1821 the Kentucky court began to show 
a disposition to evade, if not to disregard, the statute. In 
Noble y. Bank of Kewtuehy,^ Boyle, C. J., said: «'The use 
of English post-revolutionary cases in the Courts of this 
country having been proscribed by the Legislature, we 
can avail ourselves of the light those cases have shed upon 
the point in controversy, only through the medium of the 
elementary treatises upon the subject." He then referred 
to a late edition of Chitty on Bills as containing decisions 
in point, and added: ** We do not suppose that this rule 
ought to bereceivedhere merely because itis the established 
rule in England ; but we apprehend the rule is intrinsically 
proper; and it is certainly no slight confirmation of its 
intrinsic propriety that it has been sanctioned by the 
enlightened tribunals of the most commercial country in 
the world." 

Sec. 718. In the same year the court appear openly to 
neglect the Statute by quoting ^^an able opinion " of Lord 
Redesdale, salving their conscience, perhaps, by omitting 
to give the place where the opinion can be found.' But in 
1823, Mr. Littell, the reporter, in the preface to the first 
volume of his reports, although he speaks of the statute 
with contempt, says that it has been *^ very generally ac- 
quiesced in." Gradually, however, it came to be generally 
disregarded: thus, for instance, in the 12th volume of Ben. 
Monroe's reports containing cases decided in 1851, the 
year before the Revised Statutes, there are a dozen or 
more references by name and place made by the court 
itself to post-revolutionary decisions in England, although 
reference to cases of all kinds are rather sparse. Indeed 

1 3 A. K. Mftnb, 262, 264. 

« Bud ▼. BuUock, Lit Sel. C«8. 510, 512. 



nt. 
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{^ 



izl 



APPENDIX IX 325 

this Kentucky statute seems the nearest approach in a Com- 
mon Law country to a Statute abrogated by desuetude.^ 

Sec. 719. In the Revised Statutes of Kentucky adopted 
in 1852 we find the provision in an emasculated form:> 
^^ The decisions of the courts of Great Britain, rendered 
since the fourth day of July, one thousand seven hundred 
and seventy six, shall not be of binding authority in the 
courts of Kentucky, but may be read in court and have 
such weight as the judges may think proper to give them." 

1 See Dembiti, Kentooky Jorispradezioe, 7, 8. 
•C.61, |1. 



INDEX* 



The referenca are to aeotionfl. 



Acte of Sederunt, 422, 447 

Adminifltrative rules, aouroes of Law, 
243-247 

Administrative and ]udiolal func- 
tions, difference between, 090-603 

^quitaa in the Roman Law, 665 

Animals as legal persons. See Legal 
persons 

Appellate courts, opinions of, not 
binding in Qermany, on inferior 
courts, 263-264 

, binding in Common Law coun- 
tries on inferior courts, 464, 517 

Artificial persons. See Legal per- 
sons 

Authority in the Law, 553, 568, 560. 

. See Experts, opinions of; 

Judicial Precedents 

Autonomy, 339, 340, 604-099 

California, miners' customs in. Law, 
633 

Church of England, oiganisation of, 
rests on State, 688, 680 

Church Universal, not a juristic per- 
son, 650 

Churches, canons of, not statutes of 
State, 332-338 

Civil Law. Sse Common and Civil 
Law 

Citations, Law of, 562, 563 

Classification of the Law, 15-17 

Clubs, Law of, 242 

, rules of, not statutes of State, 



Command of sovereign, Law whether, 

103 
Common and Civil Law, doctrines 

conmion to, may not be necessary, 

318-320 
, comparison between, 577-505 



, imaginary oases In, 587-^600 

, both developed by learned men, 

not by legislatures or by the people, 

507a 
Conmion Law, definitions in. See 

Definitions 
Conflict of Laws, 282-284 
Construction, rules of, 700-705 
Corporations as logal penons, 115- 

131 
, whether real things, 120-123, 

128 
, whether they have real wills, 

124-128 

, how created, 12^131 

, sole, 132-135, 671 n. 

, de facto, 115 n. 

, by-laws of, not Law, 230, 

240 
, by-laws of, not statutes of State, 

332^338 

, duties of, 128 

, fiction in Federal courts as to 

membership in, 386-^300 
, gifts in pioe uatu, probably held 

by, 664-668 
Courts, 248-276 
, whether discoverers of the Law, 

211-230 
, functions of, not like those of 

discoverers in natural science, 227, 

475-476 
, functions of, not like those of 

physicians, 230 

, must be applied to, 250-252 

, power of, to enforce their deci- 
sions not essential, 253-256 
, when they differ, what is the 

Law, 257-265 
, limits of powers of, 266-272, 

643 



^ See also Table of Authors Commented On, p. ad. 
327 



328 



INDEX 



Conrto, In United BtatM, not abso- 
lutely bound by their own deoislons, 

616, 616 
, should follow their own notions 

of morslity, not those of oommu- 

nity, 610-610a 

. See Appellate oourta. 

Custom, as a souroe of Law, 608-641 
, not the sole source of non- 

sUtutory Law, 600-619a 

, practice not opinion, 606 

, not souree of Law of procedure, 

630 
, chief source of Law In matters 

of interpretation, 622, 623 
, as affecting Law and decisions 

hi oases of negligence, 624-626 
, importance of, as source of Law, 

exaggerated, 628-636 

, in matters of oontiact, 620, 631 

, whether merely evidence of the 

common consciousness of the 

people, 204, 638-640 

. See Judicial Precedents 

Customs of Hebrews antagonistio to 

the Law, 641 

Decisions and Law, differBOce be- 
tween, 337 

Deer eta of the Roman Emperors, 420- 
430 

Definitions, In the Law, 16-17 

, in the Common Law only dida, 

16 

Democracy, real rulers In, not more 
numerous than In monarchy, 164 

Deodands, 109, 110 

Dicta not judicial precedents, 665 

Digest, Justinian's, interpretation of, 
391, 392, 434 

Discoverers of the Law, Judges 
whether. See Courts 

Duty. See Rights and duties 

£klict of the prsetor, a legislative, not 
judicial, act, 422 

Equity, as a source of Law, 653-656 

, hi EngUsh Law, 664 

. See JSquitae 

Ethics. See Morality 

Evidence, conclusive, no real evi- 
dence, 228 



Examples^ use of, important, 18 
Experts, opinions of, souroea of 

Law, 661-M7a 
, opinions of, how made known to 

the courts, 667, 668 
, opinions oif, when authority, 

660-^7 
Ex ptmt faeto, the Law constantly, 

224-226, 402 

Family, rules of head of, not statutes 

of State, 833, 334 
Federal oourts hi United States, hem 

far th^ follow State Law, 62a- 

650 
Federal govenmients, sovereignty in, 

176-180 
Fiction as to dUsenshlp of members 

of corporations in Federal courts^ 

386-300 
Fictions, dogmatic, 87-80 

, historic, 7&-S6 

Fictitious persons. See Legal per- 



Fieeue, 142 

Foreign statutes not sources of Law, 

349 
France, fua eeriptum In, 348 
, publication of statutes in, 364- 

367 
, legislative interpretation of 

stotutes in, 399 

, desuetude of statutes In, 408 

, judicial precedents in, 446 

OeriehUgebraueh as a source of Law In 
Gennany, 438-445 

Gods. See Legal persons. Super- 
natural beings 

Hebrews, Law of, antagonistio to 

their customs, 641 
Hereditae jaeene, 143, 660-680 
, whether it represents ancestor 

or heir, 678 

, whether juristic person, 679 

, in Scotland, juristic person, 

680 
Human beings. See Legal persons. 

Imaginary cases in Common and 
Civil Law, 587-690 



INDEX 



329 



Inanimate things. See Legal penons 

Indian codes, cases in, 435 

Interests, human, 60 

. See Protection of interests 

International Law. See Law of na- 
tions 

Interpretation. See Oonstruotion, 
rules of 

, of statutes. See Statutes, in- 
terpretation of 

Iowa, desuetude of statutes in, 714 

Judges. See Courts, Jurists 

Judicial and administrative func- 
tions, difference between, 09(h- 
693 

Judicial Precedents, 420-660 

, character of, 420-423 

, opinions by divided court, not, 

617 

, dtcto of judges, not, 666 

, cause rather than consequences 

of custom, 634-036 

, EkigUsh post-revolutionary de- 
cisions not to be cited in Ken- 
tucky, 716-719 

, in Roman Law, 424-434 

, in France, 446 

, in Germany, 430-446 

, in Scotland, 447 

, in England, 44S-612 

, in ^igland, generally, not 

always, followed, 461, 462 

, in Ekigland, House of Lords 

bound by its own decisions, 462, 463 

, in England, sources of Law, 

not merely evidence of preexisting 
Law, 466-612 

, in the United States, 613-660 

i in the United States, effect of, 

same as in England, 614 

, in the United States, opinions 

of Courts in other States, not, 
618-620 

, in the United States, decisions 

in English courts, how far, 621-627 

, hi the United States, sources 

of Law, not merely evidence of pre- 
existing Law, 628-650 

Jurisprudence, 288-321 

, tenn disliked by praotishig 

lawyers, 12 



, comparative, 288, 289, 292, 293, 

208, 308, 311, 320, 667 
, general, 288, 289, 294-299, 309, 

317-321 

, pure, 321 

, particular, 288-290, 815, 316 

, me<fical, 291 

, as a branch of anthropology, 

296,297 
, whether formal science as op- 
posed to material, 311-314 
Juristic persons. See Legal persons 
Jurists and judges, relative position 

in Civil uid Common Law, 670- 

676 
, Law made by, compared, 677- 

696 
, not legislatures or the people, 

have developed the Law, 597a 
Jurists, probable future importance 

of, hi Common Law, 596-597 

. See Experts 

Jua reapondendt, 425-427, 560, 661 

Jua aeripium, 342-346 

Jua trium liberorum, given to Gods, 

96 
Justice, 46, 47 

Kentucky Law of non-citation, 715- 
719 

Language, growth of, analogy to 

growth of Law, fallacious, 635 
Law, The, 191-247 
, Analytic treatment of, 6, 6, 

ia-18 

, historical treatment of, 3, 4, 

, ethical treatment of, 7-9 

, is the rules laid down by the 

courts, 191, 211-214, 229-231, 

257-266, 656 
, and a \a,w, difference between, 

200 
, whether the command of the 

sovereign, 193-202 
, whether in the common cour 

sciouaness of the people, 203-210 
. See Reception of the Roman 

Law 
, whether discovered by the 

courts, 211-230, 495-512 
, whether It preexists the decl- 



330 



INDEX 



■ioiis of the courts, 221-226, 485- 

fil2 
Law, The, distinction between, and 

other ndes, 232, 233 
, habitually disobeyed, whether 

tobecaUedLaw, 234, 236 
, does not comprise all rules acted 

on by the courts, 236-242 
, administrative rules, sources of, 

243-247 
, what it is when courts differ, 

267-265 

1 is all judge-made, 276 

, and dedsions, difference be- 
tween, 337 
, and sources of Law, difference 

between, 191, 666 

of nations, 277-287 

of nations, whether Law, 286- 

287 
Law, written and unwritten. See Jve 

aeriptum 
Legal duties. See Legal tights and 

duties 
Legal persons, 63-148 

, normal human beings, 67-70 

, abnormal human beings, 71-73, 

go-94 

, supernatural beings, 06-99 

, animals, 62, 100-105 

, inanimate things, 106-110 

, juristic, artificbkl, or fictitious, 

111-143 
Legal lights, of State, 184-190 

, temporary suspension of, 

Ihering's view as to, 144-148 
Legal rights and duties, 34-62 
Legislation, sdence of, 9, 299-301, 

304, 306, 316 
Legislative functions of individuals, 

326 
Legislatures, interpretation of stat- 
utes by, 394-399 

, subordinate, 324, 331 

Lords, House of, bound by its own 
decisions, 462, 463 

Maryland, desuetude of statutes in, 

713 
Might is right, 166 
Morality as source of Law, 642-662, 

667 



Morality, Test of, of theoretical but 

of little practical consequence in 

Jurisprudence, 646-662 
Municipal bonds, decisions of U. 8. 

Supreme Court as to, 483, 484, 

646-660 

Negligence. See Custom 
Non-poUtical bodies. Law of, 241, 242 

Oftiier dicta, SeelKota 

Obligation, legal, as equivalent for 

legal duty, 46 
Ori^hial contract, 16&-168 

Parliament, whether sovereign, 162, 
173 

, acts of, did not extend to 

colonies, unless expresely men- 
tioned, 417 

Pennsylvania, desuetude of statutes 
hi, 709-712 

People not creators of the State, 166 

Persons. See Legal persons 

PU ueue in the U^ Roman Empire, 
668-668 

Possession, literature on, in Civil Law, 
692 

Pnstor. See Edict 

Precedents. See Judicial Precedents 

Prescription, 313 

Private International Law, 282-284 

Proclamation and statute, no juristic 
difference between, 828, 331 

Protected Interests^ whether rights, 
48,49 

Protection of human interests by 
society, modes of, 63-66 

Publication of statutes and promul- 
gation, distinction between, 363 

Publication of Statutes, none in an- 
cient Rome, 361 

, on the Continent of Europe, 

362-367 

, in Scotland, 368 

, hi England, 869. 360 

, at different times for different 

pUmcs, 366-367 

Public policy, question of morality, 
644 

Reception of Roman Law, 438, 681- 
687 



INDEX 



331 



Beeht, ambiguity of tenn, 23 

RechUUkre, 214 

Reports, Engliah, citations of 
in, 458, 459 

Rescripts of the Roman Emperors, 
429, 431, 432 

Right, ambiguity of tenn, 24 

Rightis, not protected interests, but 
the power to protect interests, 48, 
49 

, of society and of the individ- 
ual, 36, 51 

, of State. <See State, Legal rights 

Rights and duties, 23-33 

. See Legal rights and duties 

Roman Catholic Church, Law of, 
242 

Saints. See Legal persons, Super- 
natural beings 
Sanctioning a law, 354 
Schoffen, opinions of, 437, 438 
Scotland, publication of statutes in, 
358 

, desuetude of statutes in, 409 

, Judicial Precedents in, 447 

, hereditae jacena is juristic per- 
son in, 680 
Ships as legal persons, 110 
Sources of the Law, 273-276 

, comprise administrative rules, 

243-247 

, and Law, difference between, 

656 
South Carolina, desuetude of statutes 

hi, 706-708 
, statute of, as to acts of Par- 
liament, 418 
Sovereignty, 160, 16^183 

, in United States, 176-180 

State, The, 149-190 

, protection of human interests 

by, modes of, 54-56 

, merely a personified abstraction, 

155-161 

, who creates it, 153-168 

, whether its power subject to 

legal limitation, 160 

, does itsoiganisation rest on the 

will of Qod, 162-164 

, does its oiganisation rest on 

might being right, 165 



, does its organisation rest on 

original contract, 16&-168 

, legal rights of, 184-190 

organisation of, limits power of 

courts, 267-272 
Statute of Frauds, varying interpro- 

totions of, 381-383 
Statutes, 322-419 
, sources of Law, not Law, 275, 

276 

, various names of, 327, 330 

, of non-political bodies, 329, 

330,33^-338 

, form of, 341-346 

, generality of, 347, 848 

, foreign, not sources of Ijaw, 

349 

, enactment of, 350-365 

, publication of. See Publication 

, public and private, proof of, in 

England, 361, 362 
, public and private, proof of, in 

United States, 363-365 
, interpretation of, 275, 276, 

366-399 
, interpretation of, by legislature, 

394-399 

, irrepealable, 400 

, English, position of. In the 

United SUtes, 417 

, desuetude of, 400-419 

, desuetude of, in the Civil Law, 

401-409 
• , desuetude of, in England, 410- 

415 
, desuetude of, in United States, 

419, 706-714 
SH/tungen, 136-140 

, ptt usus probably not, 664 

Succession in Conunon Law, 670-675 

in Civil Law, 669, 676-680 

Supernatural beings as legal persons. 

See Legal persons 
Supreme Court of United States, 

doctrine of, in Swift v. Tyaon, 

479-482, 535-544 
, decisions on mimlcipal bonds, 

483, 484, 545-550 
, will overrule its prior decisions^ 

516 

Tugendlehre, 214 



332 



INDEX 



Twelve Tables, growth of Roman 

Law from, by fictions, 76 
, growth of Roman Law from, by 

faiterprotation, 380, 406 

Unborn children, rights of, 03-94 
United States. See Federal courts, 

Judicial Precedents, Sovereignty, 

SUtutes 
Unwritten Law. Sm Jut tarxptum 
Utility as test of morality, 662 

Visitore, functions of, 600-603 
Volksgeiat, 203, 209, 638-640 

WeisthOmer, 437 

Will, necessary for the exercise of 

rights, 67, 62, 66 
, not necessaiy for creation of 

duty, 69-61 



, freedom of, not sole reason for 

creating rights, 68 

f attribution of, to abnormal hu- 
man persons, 73, 90, 91 

, attribution of, to ^nim»in 

101 

, attribution of, to things, 106- 

110 

, attribution of, to iuristio per- 
sons, 118-128 

, no such thing as a general, 

126 

Wills, rules of construction in, 700- 
705 

Written law. iSes /us acripUun 



Year Books, the note-books of stu- 
dents, 466-467 



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